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PART 1N.I.PENSION SCHEME MEMBERSHIP FOR JOBHOLDERS

Modifications etc. (not altering text)

C1Pt. 1 applied (with modifications) (1.7.2012) by The Automatic Enrolment (Offshore Employment) Order 2012 (S.I. 2012/1388), arts. 1(1), 2 (with art. 5)

CHAPTER 1N.I.EMPLOYERS' DUTIES

JobholdersN.I.

JobholdersN.I.

1—(1) For the purposes of this Part a jobholder is a worker—

(a)who is working or ordinarily works in Northern Ireland under the worker's contract,

(b)who is aged at least 16 and under 75, and

(c)to whom qualifying earnings are payable by the employer in the relevant pay reference period (see sections 13 and 15).

(2) Where a jobholder has more than one employer, or a succession of employers, this Chapter applies separately in relation to each employment.

(3) Accordingly—

(a)references to the employer are references to the employer concerned;

(b)references to membership of a pension scheme are references to membership in relation to the employment concerned.

Commencement Information

I1S. 1 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Employers' dutiesN.I.

Continuity of scheme membershipN.I.

2—(1) If a jobholder is an active member of a qualifying scheme, the employer must not take any action, or make any omission, by which (without the jobholder ceasing to be employed by the employer)—

(a)the jobholder ceases to be an active member of the scheme, or

(b)the scheme ceases to be a qualifying scheme.

(2) Subsection (1) is not contravened if the jobholder remains an active member of another qualifying scheme.

[F1(3) Subsection (1) is not contravened if by virtue of section 5 the jobholder becomes an active member of an automatic enrolment scheme with effect from—

(a)the day after the cessation referred to in paragraph (a) or (b) of subsection (1), or

(b)a day within the prescribed period (if a period is prescribed).]

(4) Subsection (1) is not contravened if the action or omission is at the jobholder's request.

(5) In this Part as it applies in the case of any jobholder, references to a qualifying scheme are references to a pension scheme which is a qualifying scheme in relation to that jobholder (see section 16).

Textual Amendments

F1S. 2(3) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(1), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

Modifications etc. (not altering text)

C2S. 2(1): power to exclude conferred by SI 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

Commencement Information

I2S. 2 partly in force; s. 2 in force for certain purposes at Royal Assent see s. 118(2)

I3S. 2 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Automatic enrolmentN.I.

[F23—(1) This section applies to a jobholder—

(a)who is aged at least 22,

(b)who has not reached pensionable age, and

(c)to whom earnings of more than [F3£10,000] are payable by the employer in the relevant pay reference period (see section 15).]

(2) The employer must make prescribed arrangements by which the jobholder becomes an active member of an automatic enrolment scheme with effect from the automatic enrolment date.

(3) Subsection (2) does not apply if the jobholder was an active member of a qualifying scheme on the automatic enrolment date.

(4) Subsection (2) does not apply if, within the prescribed period before the automatic enrolment date, the jobholder ceased to be an active member of a qualifying scheme because of any action or omission by the jobholder.

(5) For the purposes of arrangements under subsection (2) regulations may require information to be provided to any person by the employer or—

(a)where the arrangements relate to an occupational pension scheme, the trustees or managers of the scheme;

(b)where the arrangements relate to a personal pension scheme, the provider of the scheme.

(6) For the purposes of arrangements made under subsection (2) in relation to a personal pension scheme, regulations may deem an agreement to exist (subject to section 8) between the jobholder and the provider of the scheme for the jobholder to be an active member of the scheme on terms and conditions determined in accordance with the regulations.

[F4(6A) In this section “earnings” has the meaning given in section 13(3).

(6B) In the case of a pay reference period of less or more than 12 months, subsection (1) applies as if the amount in paragraph (c) were proportionately less or more.]

(7) The automatic enrolment date, in relation to any person, is the first day on which this section applies to the person as a jobholder of the employer.[F5This is subject to section 4.]

(8) In this Part as it applies in the case of any jobholder, references to an automatic enrolment scheme are references to a pension scheme which is an automatic enrolment scheme in relation to that jobholder (see section 17).

Textual Amendments

F5Words in s. 3(7) added (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(1), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

Modifications etc. (not altering text)

C3S. 3(2): power to exclude conferred by S.I. 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

Commencement Information

I4S. 3 partly in force; s. 3 in force for certain purposes at Royal Assent see s. 118(2)

I5S. 3 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Postponement or disapplication of automatic enrolmentN.I.

[F64—(1) Where—

(a)an employer (E) gives to a person employed by E on E's staging date (“the worker”) notice that E intends to defer automatic enrolment for the worker until a date specified in the notice (“the deferral date”), and

(b)any prescribed requirements in relation to the notice are met,

the worker's automatic enrolment date is the deferral date if on that date section 3 applies to the worker as a jobholder of E; if not, subsection (4) applies.

(2) Where—

(a)a person (“the worker”) begins to be employed by an employer (E) after E's staging date,

(b)E gives the worker notice that E intends to defer automatic enrolment until a date specified in the notice (“the deferral date”), and

(c)any prescribed requirements in relation to the notice are met,

the worker's automatic enrolment date is the deferral date if on that date section 3 applies to the worker as a jobholder of E; if not, subsection (4) applies.

(3) Where—

(a)a person (“the worker”) employed by an employer (E) becomes, after E's staging date, a jobholder to whom section 3 applies,

(b)E gives the worker notice that E intends to defer automatic enrolment until a date specified in the notice (“the deferral date”), and

(c)any prescribed requirements in relation to the notice are met,

the worker's automatic enrolment date is the deferral date if on that date section 3 applies to the worker as a jobholder of E; if not, subsection (4) applies.

(4) Where this subsection applies, section 3(2) does not apply in relation to any employment of the worker by E in the period beginning with the starting day and ending with the deferral date.

(5) A notice under this section may be given on or before the starting day or within a prescribed period after that day.

(6) The deferral date may be any date in the period of 3 months after the starting day.

(7) An employer who gives a worker a notice under subsection (1) or (2) may not give the worker a notice under subsection (3) in relation to any occasion on or before the deferral date specified in the notice on which the worker becomes a jobholder to whom section 3 applies.

(8) In this section—

“staging date”, in relation to an employer of a particular description, means the date prescribed under section 12 in relation to employers of that description;

“starting day” means—

(a)

E's staging date, in the case of a notice under subsection (1);

(b)

the day on which the worker begins to be employed by E, in the case of a notice under subsection (2);

(c)

the day on which the worker becomes a jobholder to whom section 3 applies, in the case of a notice under subsection (3).]

Textual Amendments

F6S. 4 substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(2), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

Commencement Information

I6S. 4 partly in force; s. 4 in force for certain purposes at Royal Assent see s. 118(2)

Automatic re-enrolmentN.I.

5—[F7(1) This section applies to a jobholder—

(a)who is aged at least 22,

(b)who has not reached pensionable age, and

(c)to whom earnings of more than [F8£10,000] are payable by the employer in the relevant pay reference period (see section 15).]

[F9(1A) This section also applies to a jobholder who—

(a)is aged at least 22,

(b)has not reached pensionable age, and

(c)is not an active member of a qualifying scheme because there has been a period beginning at any time after the jobholder's automatic enrolment date during which the requirements of section 1(1)(a) or (c) were not met (so that the person was not a jobholder for that period).

(1B) This section also applies to a jobholder who has ceased to be an active member of a qualifying scheme because of something other than an action or omission by the jobholder.]

(2) The employer must make prescribed arrangements by which the jobholder becomes an active member of an automatic enrolment scheme with effect from the automatic re-enrolment date.

(3) Subsection (2) does not apply if the jobholder was an active member of a qualifying scheme on the automatic re-enrolment date.

[F10(3A) Subsection (2) does not apply if the jobholder's automatic enrolment date is deferred under section 4 from a date before the automatic re-enrolment date to a date after the automatic re-enrolment date.]

F11(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) For the purposes of arrangements under subsection (2) regulations may require information to be provided to any person by the employer or—

(a)where the arrangements relate to an occupational pension scheme, the trustees or managers of the scheme;

(b)where the arrangements relate to a personal pension scheme, the provider of the scheme.

(7) For the purposes of arrangements made under subsection (2) in relation to a personal pension scheme, regulations may deem an agreement to exist (subject to section 8) between the jobholder and the provider of the scheme for the jobholder to be an active member of the scheme on terms and conditions determined in accordance with the regulations.

[F13(7A) In this section “earnings” has the meaning given in section 13(3).

(7B) In the case of a pay reference period of less or more than 12 months, subsection (1) applies as if the amount in paragraph (c) were proportionately less or more.]

(8) Automatic re-enrolment dates are datesF14... that are to be determined in accordance with regulations.

Textual Amendments

F9S. 5(1A)-(1B) inserted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(2), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F12S. 5(5) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(3), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F14Words in s. 5(8) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(4), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

Modifications etc. (not altering text)

C8S. 5(2): power to exclude conferred by SI 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

C9S. 5(2) excluded by S.R. 2010/122, reg. 14 (as substituted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations (Northern Ireland) 2012 (S.R. 2012/232), regs., 2(8))

Commencement Information

I7S. 5 partly in force; s. 5 in force for certain purposes at Royal Assent see s. 118(2)

I8S. 5 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Timing of automatic re-enrolmentN.I.

6—(1) Regulations under section 5(8) must either—

(a)secure that for any jobholder there is no automatic re-enrolment date less than three years after the jobholder's automatic enrolment date, and that there is not more than one automatic re-enrolment date in any period of three years, or

(b)secure that for any employer there is not more than one automatic re-enrolment date in any period of [F152 years and 9 months] .

(2) Subsection (1) does not restrict the provision that regulations may make about the timing of a jobholder's automatic re-enrolment date (“the relevant date”) in the following cases.

F16(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The [F17first case] is where—

(a)F18... the jobholder ceases to be an active member of a qualifying scheme F19...,

(b)that event is not the effect of any action or omission by the jobholder F20..., and

(c)the relevant date is the jobholder's first automatic re-enrolment date after that [F21event] .

(5) The [F22second case] is where—

(a)there is a period beginning at any time after the jobholder's automatic enrolment date during which the requirements of section 1(1)(a) or (c) are not met (so that the person is not a jobholder for that period), and

(b)the relevant date is the jobholder's first automatic re-enrolment date after that period.

F23(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15Words in s. 6(1)(b) substituted (2.6.2012 for specified purposes, 1.4.2015 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 8, 34(1)(3); S.R. 2015/206, art. 2

F16S. 6(3) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(4)(a), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F17Words in s. 6(4) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(4)(b), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F18Words in s. 6(4)(a) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(5)(a), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F19Words in s. 6(4)(a) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(5)(b), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F20Words in s. 6(4)(b) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(5)(c), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F21Word in s. 6(4)(c) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(5)(d), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F22Words in s. 6(5) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(4)(c), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F23S. 6(6) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(4)(a), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

Commencement Information

I9S. 6 partly in force; s. 6 in force for certain purposes at Royal Assent see s. 118(2)

I10S. 6 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Jobholder's right to opt inN.I.

7—(1) This section applies to a jobholder who is not an active member of a qualifying scheme.

(2) But it does not apply at a time when—

(a)arrangements are required to be made under section 3 or 5 in respect of the jobholder, F24...

F24(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The jobholder may by notice require the employer to arrange for the jobholder to become an active member of an automatic enrolment scheme.

(4) The Department may by regulations make provision—

(a)about the form and content of the notice;

(b)about the arrangements that the employer is required to make;

(c)for determining the date with effect from which the jobholder is to become an active member under the arrangements.

(5) For the purposes of arrangements under subsection (3) regulations may require information to be provided to any person by the employer or—

(a)where the arrangements relate to an occupational pension scheme, the trustees or managers of the scheme;

(b)where the arrangements relate to a personal pension scheme, the provider of the scheme.

(6) For the purposes of arrangements made under subsection (3) in relation to a personal pension scheme, regulations may deem an agreement to exist (subject to section 8) between the jobholder and the provider of the scheme for the jobholder to be an active member of the scheme on terms and conditions determined in accordance with the regulations.

(7) Subsections (8) and (9) apply where a jobholder becomes an active member of an automatic enrolment scheme in pursuance of a notice under this section and, within the period of 12 months beginning with the day on which that notice was given—

(a)ceases to be an active member of that scheme, and

(b)gives the employer a further notice under this section.

(8) The further notice does not have effect to require the employer to arrange for the jobholder to become an active member of an automatic enrolment scheme.

(9) But any arrangements the employer makes for the jobholder to become, within that period, an active member of such a scheme must be made in accordance with regulations under this section.

Textual Amendments

F24S. 7(2)(b) and preceding word omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(5), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

Modifications etc. (not altering text)

C14S. 7(3): power to exclude conferred by SI 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

Commencement Information

I11S. 7 partly in force; s. 7 in force for certain purposes at Royal Assent see s. 118(2)

I12S. 7 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Jobholder's right to opt outN.I.

8—(1) This section applies on any occasion when arrangements under section 3(2), 5(2) or 7(3) apply to a jobholder (arrangements for the jobholder to become an active member of an automatic enrolment scheme).

(2) If the jobholder gives notice under this section—

(a)the jobholder is to be treated for all purposes as not having become an active member of the scheme on that occasion;

(b)any contributions paid by the jobholder or by the employer on behalf or in respect of the jobholder, on the basis that the jobholder has become an active member of the scheme on that occasion must be refunded in accordance with prescribed requirements.

(3) Regulations under subsection (2)(b) may, in particular, make provision about—

(a)the time within which contributions must be refunded;

(b)how the amount to be refunded is calculated;

(c)the procedure for refunding contributions.

(4) The Department may by regulations make further provision in relation to notices under this section.

(5) The regulations may in particular make provision—

(a)as to the form and content of a notice;

(b)as to the period within which a notice must be given;

(c)as to the person to whom a notice must be given;

(d)requiring any person to make prescribed arrangements for enabling notices to be given;

(e)requiring any person to take prescribed action in consequence of a notice (in addition to any action prescribed under subsection (2)(b)).

(6) The regulations must provide for the notice—

(a)to include information about the effect in relation to jobholders of giving notice under this section, and

(b)to be signed or otherwise authorised by the jobholder.

Commencement Information

I13S. 8 partly in force; s. 8 in force for certain purposes at Royal Assent see s. 118(2)

I14S. 8 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Duty in relation to workers without qualifying earningsN.I.

Workers without qualifying earningsN.I.

9—(1) This section applies to a worker—

(a)to whom paragraphs (a) and (b) of section 1(1) apply (working in Northern Ireland and aged between 16 and 75),

(b)to whom paragraph (c) of section 1(1) does not apply (qualifying earnings), and

(c)who is not an active member of a pension scheme that satisfies the requirements of this section.

(2) The worker may by notice require the employer to arrange for the worker to become an active member of a pension scheme that satisfies the requirements of this section.

(3) The Department may by regulations make provision—

(a)about the form and content of the notice;

(b)about the arrangements that the employer is required to make;

(c)for determining the date with effect from which the worker is (subject to compliance with any requirements of the scheme) to become an active member under the arrangements.

(4) Subsections (5) and (6) apply where a worker becomes an active member of a pension scheme in pursuance of a notice under this section and, within the period of 12 months beginning with the day on which that notice was given—

(a)ceases to be an active member of that scheme because of any action or omission by the worker, and

(b)gives the employer a further notice under this section.

(5) The further notice does not have effect to require the employer to arrange for the worker to become an active member of a pension scheme.

(6) But any arrangements the employer makes for the worker to become, within that period, an active member of a pension scheme that satisfies the requirements of this section must be made in accordance with regulations under this section.

(7) A pension scheme satisfies the requirements of this section if—

(a)it is registered under Chapter 2 of Part 4 of the Finance Act 2004 (c. 12), and

(b)in the case of a personal pension scheme, there are, in relation to the worker concerned, direct payment arrangements (within the meaning of section 107A of the Pension Schemes (Northern Ireland) Act 1993 (c. 49) (in this Act referred to as “the Pension Schemes Act”)) between the worker and the employer.

Modifications etc. (not altering text)

C15S. 9(2): power to exclude conferred by SI 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

Commencement Information

I15S. 9 partly in force; s. 9 in force for certain purposes at Royal Assent see s. 118(2)

I16S. 9 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Supplementary provision about the dutiesN.I.

Information to be given to workersN.I.

10—(1) The Department [F25may] make provision by regulations—

(a)for F26... jobholders to be given information about the effect of sections 2 to 8 in relation to them;

(b)for F27... workers to whom section 9 applies to be given information about the effect of that section in relation to them;

(c)for a prescribed person to be required to provide the information.

(2) Regulations under this section [F28may in particular make provision about] —

(a)what information must be given;

(b)in what circumstances it must be given;

(c)how and when it must be given.

Textual Amendments

Commencement Information

I17S. 10 partly in force; s. 10 in force for certain purposes at Royal Assent see s. 118(2)

I18S. 10 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Information to be given to the Pensions RegulatorN.I.

11—(1) The Department may make regulations requiring employers to provide the Pensions Regulator (“the Regulator”) with information about action they have taken or intend to take for the purposes of any provision of, or of regulations under, sections 2 to 10.

(2) The regulations may in particular—

(a)require an employer to provide information about pension schemes to which any action relates;

(b)require an employer to identify which of any prescribed descriptions a scheme falls within;

(c)require an employer to provide information that appears to the Department to be required for the performance by the Regulator of its functions under Chapter 2;

(d)make provision about how and in what form any information is to be provided.

Commencement Information

I19S. 11 partly in force; s. 11 in force for certain purposes at Royal Assent see s. 118(2)

Introduction of employers' dutiesN.I.

12  The Department may by regulations provide that sections 2 to 9 do not apply in the case of an employer of any description until such date after the coming into operation of those sections as is prescribed in relation to employers of that description.

Commencement Information

I20S. 12 partly in force; s. 12 in force for certain purposes at Royal Assent see s. 118(2)

[F29Qualifying earnings and earnings trigger]N.I.

Textual Amendments

Qualifying earningsN.I.

13—(1) A person's qualifying earnings in a pay reference period of 12 months are the part (if any) of the gross earnings payable to that person in that period that is—

(a)more than [F30£6,240], and

(b)not more than [F31£50,270].

(2) In the case of a pay reference period of less or more than 12 months, subsection (1) applies as if the amounts in paragraphs (a) and (b) were proportionately less or more.

(3) In this section, “earnings”, in relation to a person, means sums of any of the following descriptions that are payable to the person in connection with the person's employment—

(a)salary, wages, commission, bonuses and overtime;

(b)statutory sick pay under Part 11 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) (in this Act referred to as “the Contributions and Benefits Act”);

(c)statutory maternity pay under Part 12 of that Act;

(d)[F32statutory paternity pay ] under Part 12ZA of that Act;

(e)statutory adoption pay under Part 12ZB of that Act;

[F33(ea)statutory shared parental pay under Part 12ZC of that Act;]

(f)sums prescribed for the purposes of this section.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I21S. 13 partly in force; s. 13 in force for certain purposes at Royal Assent see s. 118(2)

I22S. 13 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Review of [F34earnings trigger and] qualifying earnings bandN.I.

14  Whenever the Secretary of State makes an order under section 14 of the Pensions Act 2008 (c. 30) (review of [F35earnings trigger and] qualifying earnings band), the Department may make a corresponding order for Northern Ireland.

Textual Amendments

Commencement Information

I23S. 14 partly in force; s. 14 in force for certain purposes at Royal Assent see s. 118(2)

I24S. 14 in operation at 8.6.2012 in so far as not already in operation by S.R. 2012/236, art. 2(a)

Pay reference periodN.I.

15—(1) In relation to any person a pay reference period is the period prescribed.

(2) The Department may by regulations—

(a)make provision for determining a person's earnings in any pay reference period;

(b)make provision for determining the first date of each pay reference period in relation to a person.

(3) A reference in any provision to the relevant pay reference period is a reference to the period determined in accordance with regulations under this section, as they apply for the purposes of that provision in the case concerned.

Commencement Information

I25S. 15 partly in force; s. 15 in force for certain purposes at Royal Assent see s. 118(2)

I26S. 15 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

[F36Power to specify rounded figuresN.I.

15A—(1) Whenever the Secretary of State makes an order under section 15A of the Pensions Act 2008 specifying rounded figures for the purposes of section 3(6B), 5(7B) or 13(2) of that Act, the Department may make an order specifying corresponding rounded figures for the purposes of section 3(6B), 5(7B) or 13(2) of this Act.

(2) A rounded figure so specified applies in place of the amount that would otherwise apply.]

Textual Amendments

F36S. 15A inserted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 10, 34(1)(3); S.R. 2012/233, art. 2(1)(a)

Qualifying schemes and automatic enrolment schemesN.I.

Qualifying schemesN.I.

16—(1) A pension scheme is a qualifying scheme in relation to a jobholder (J) if—

(a)it is an occupational pension scheme or a personal pension scheme,

(b)it is registered under Chapter 2 of Part 4 of the Finance Act 2004 (c. 12), and

(c)while J is an active member, the scheme satisfies the quality requirement in relation to J.

(2) The Department may by regulations provide that subsection (1)(b) does not apply in relation to a scheme to which section 25 or 27 applies, if prescribed requirements are satisfied.

(3) The Department may by regulations provide that a scheme is not a qualifying scheme in relation to J if—

F37(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39(ab). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)while J is an active member, the contributions that must be paid to the scheme by, or on behalf or in respect of, J exceed a prescribed amount, or

(c)the scheme provides for average salary benefits to be provided to or in respect of J and contains prescribed features.

[F40(3A) See also paragraphs1(4) and 2(4) of Schedule 18 to the Pensions Act (Northern Ireland) 2015, which confer power to make regulations providing for a scheme not to be a qualifying scheme in relation to a jobholder in certain circumstances.]

F41(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I27S. 16 partly in force; s. 16 in force for certain purposes at Royal Assent see s. 118(2)

I28S. 16 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Automatic enrolment schemesN.I.

17—(1) A pension scheme is an automatic enrolment scheme in relation to a jobholder (J) if—

(a)it is a qualifying scheme in relation to J,

(b)it satisfies the conditions in subsection (2), and

(c)it satisfies any further conditions prescribed.

(2) The conditions mentioned in subsection (1)(b) are that—

(a)no provision of the scheme prevents the employer from making arrangements prescribed under section 3(2), 5(2) or 7(4) for J to become an active member of the scheme;

(b)no provision of the scheme requires J to express a choice in relation to any matter, or to provide any information, in order to remain an active member.

Commencement Information

I29S. 17 partly in force; s. 17 in force for certain purposes at Royal Assent see s. 118(2)

I30S. 17 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Occupational pension schemesN.I.

18  For the purposes of this Part, each of these is an occupational pension scheme—

(a)an occupational pension scheme within the meaning of section 1(1) of the Pension Schemes Act that has its main administration in the United Kingdom;

F42(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a pension scheme that is prescribed or is of a prescribed description and that has its main administration elsewhere than in [F43the United Kingdom].

Textual Amendments

Commencement Information

I31S. 18 partly in force; s. 18 in force for certain purposes at Royal Assent see s. 118(2)

I32S. 18 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Personal pension schemesN.I.

19  For the purposes of this Part, a personal pension scheme is a pension scheme that is not an occupational pension scheme.

Commencement Information

I33S. 19 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Quality requirementsN.I.

Quality requirement: UK money purchase schemesN.I.

20—(1) A money purchase scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if under the scheme—

(a)the jobholder's employer must pay contributions in respect of the jobholder;

(b)the employer's contribution, however calculated, must be equal to or more than 3% of the amount of the jobholder's qualifying earnings in the relevant pay reference period;

(c)the total amount of contributions paid by the jobholder and the employer, however calculated, must be equal to or more than 8% of the amount of the jobholder's qualifying earnings in the relevant pay reference period.

F44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A scheme does not fail to satisfy the quality requirement under this section merely because the trustees or managers of the scheme may on any occasion refuse to accept a contribution below an amount prescribed for the purposes of this section on the grounds that it is below that amount.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I34S. 20 partly in force; s. 20 in force for certain purposes at Royal Assent see s. 118(2)

I35S. 20 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Quality requirement: UK defined benefits schemesN.I.

[F4521  A defined benefits scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if it satisfies the test scheme standard in relation to that jobholder]

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I36S. 21 partly in force; s. 21 in force for certain purposes at Royal Assent see s. 118(2)

I37S. 21 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Test scheme standardN.I.

22—(1) A scheme satisfies the test scheme standard in relation to a jobholder (J) if the pensions to be provided for the relevant members of the scheme are broadly equivalent to, or better than, the pensions which would be provided for them under a test scheme.

[F46(2) Subject to subsection (3), the relevant members are J and all active members who are jobholders of the same employer as J.]

(3) In applying this section the pensions to be provided for relevant members must be considered as a whole.

(4) The Department may by regulations make provision for the manner of, and criteria for, determining whether the pensions to be provided for the relevant members under a scheme are broadly equivalent to, or better than, the pensions which would be provided for them under a test scheme.

(5) Regulations under subsection (4) may provide for the determination to be made in accordance with guidance issued from time to time by the Department.

(6) The Department may by regulations provide that a scheme only satisfies the test scheme standard if the scheme actuary certifies that it does.

(7) Except in prescribed circumstances, the scheme actuary is the actuary appointed under Article 47(1)(b) of the Pensions (Northern Ireland) Order 1995 (NI 22) (in this Act referred to as “the 1995 Order”) (professional advisers) in relation to the scheme.

[F47(8) In the case of a scheme under which a sum of money is made available for the provision of benefits to a relevant member, references in this section to pensions are to be read as references to such sums.]

Textual Amendments

F47S. 22(8) added (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 12(1), 34(1)(3); S.R. 2012/265, art. 2(1)(c)

Commencement Information

I38S. 22 partly in force; s. 22 in force for certain purposes at Royal Assent see s. 118(2)

I39S. 22 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Test schemeN.I.

[F4823—(1) A test scheme is an occupational pension scheme which satisfies—

(a)the requirement in subsection (2),

(b)the requirement in subsection (4) or requirements prescribed under subsection (6) (as appropriate), and

(c)any further requirements that are prescribed.

(2) The scheme must either—

(a)provide for a member to be entitled to a pension commencing at the appropriate age and continuing for life, or

(b)provide for a sum of money to be made available for the provision of benefits to a member commencing at the appropriate age and continuing for life.

(3) The appropriate age is 65 or any higher age prescribed.

(4) In the case of a scheme that provides entitlement to a pension as mentioned in subsection (2)(a), the annual rate of the pension at the appropriate age must be—

(a)1/120th of average qualifying earnings in the last three tax years preceding the end of pensionable service,

multiplied by

(b)the number of years of pensionable service, up to a maximum of 40.

(5) Section 13(1) (qualifying earnings) applies for the purposes of subsection (4) as if the reference to a pay reference period were a reference to a tax year.

(6) In the case of a scheme that provides for a sum of money to be made available as mentioned in subsection (2)(b), regulations must prescribe requirements relating to that sum.]

Textual Amendments

F48S. 23 substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 12(2), 34(1)(3); S.R. 2012/265, art. 2(1)(c)

Commencement Information

I40S. 23 partly in force; s. 23 in force for certain purposes at Royal Assent see s. 118(2)

[F49Alternative quality requirements for UK defined benefits schemesN.I.

23A—(1) The Department may by regulations provide that a defined benefits scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if any one or more of the following is satisfied—

(a)the scheme is of a prescribed description and satisfies the quality requirement under section 20 in relation to that jobholder;

(b)the cost of providing the benefits accruing for or in respect of the relevant members over a relevant period would require contributions to be made of a total amount equal to at least a prescribed percentage of the members' total relevant earnings over that period;

(c)in the case of each of at least 90% of the relevant members, the cost of providing the benefits accruing for or in respect of the member over a relevant period would require contributions to be made of a total amount equal to at least a prescribed percentage of the member's total relevant earnings over that period.

(2) For this purpose—

“contributions” means contributions to the scheme by, or on behalf or in respect of, a relevant member;

“relevant earnings” means earnings of a prescribed description;

“relevant members” means members of the scheme of a prescribed description;

“relevant period” means a period specified in or determined in accordance with the regulations.

(3) A percentage prescribed under subsection (1)(b) or (c) must be at least 8%.

(4) Regulations under subsection (1)(b) or (c) may make provision—

(a)about how to calculate whether the requirement is satisfied, including provision requiring the calculation to be made in accordance with prescribed methods or assumptions;

(b)requiring benefits of a prescribed description to be disregarded in determining whether the requirement is satisfied;

(c)that a scheme only satisfies the requirement if the scheme actuary certifies that it does; and for this purpose “scheme actuary” has the prescribed meaning.

(5) Section 13(3) (meaning of “earnings”) applies for the purposes of this section as it applies for the purposes of that section.]

Textual Amendments

Quality requirement: UK hybrid schemesN.I.

24—(1) A hybrid scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if it satisfies the requirements mentioned in whichever of these is the appropriate paragraph—

(a)the requirements for a money purchase scheme under section 20, subject to any prescribed modifications;

(b)the requirements for a defined benefits scheme under sections 21 to [F5023A ] , subject to any prescribed modifications.

(2) Which paragraph of subsection (1) is appropriate for any hybrid scheme is to be determined by rules made by the Department.

(3) The rules may provide for different paragraphs to be appropriate for different provisions of a scheme.

(4) The rules may provide for the paragraphs to be appropriate as alternatives, for any scheme or any provisions of a scheme.

Textual Amendments

Modifications etc. (not altering text)

C21S. 24 applied (with modifications) (1.7.2012) by The Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations (Northern Ireland) 2010 (S.R. 2010/122), regs. 1(1), 45(5)(6) (as amended (1.7.2012) by S.R. 2012/237, regs. 1(1)(b), 2(2))

Commencement Information

I41S. 24 partly in force; s. 24 in force for certain purposes at Royal Assent see s. 118(2)

I42S. 24 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Quality requirement: non-UK occupational pension schemesN.I.

25  The Department may by regulations make provision as to the quality requirement to be satisfied in the case of an occupational pension scheme within section 18(b) or (c).

Commencement Information

I43S. 25 partly in force; s. 25 in force for certain purposes at Royal Assent see s. 118(2)

Quality requirement: UK personal pension schemesN.I.

26—(1) This section applies to a personal pension scheme if the operation of the scheme—

(a)is carried on in such a way as to be a regulated activity for the purposes of the Financial Services and Markets Act 2000 (c. 8), and

(b)is carried on in the United Kingdom by a person who is in relation to that activity an authorised person or an exempt person under section 19 of that Act.

(2) The scheme satisfies the quality requirement in relation to a jobholder if the following conditions are satisfied.

(3) The first condition is that all of the benefits that may be provided to the jobholder under the scheme are money purchase benefits.

(4) The second condition is that, in relation to the jobholder, there is an agreement between the provider of the scheme and the employer under which—

(a)the employer must pay contributions in respect of the jobholder;

(b)the employer's contribution, however calculated, must be equal to or more than 3% of the amount of the jobholder's qualifying earnings in the relevant pay reference period.

(5) In subsection (6), “shortfall” means the difference (if any) between—

(a)the employer's contribution in respect of the jobholder under the agreement referred to in subsection (4), and

(b)8% of the amount of the jobholder's qualifying earnings in the relevant pay reference period.

(6) The third condition is that if there is a shortfall there is an agreement between the provider of the scheme and the jobholder under which the jobholder must pay contributions which, however calculated, are equal to or more than the shortfall.

(7) The fourth condition is that, in relation to the jobholder, there are direct payment arrangements (within the meaning of section 107A of the Pension Schemes Act) between the jobholder and the employer.

F51(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) A scheme does not fail to satisfy the quality requirement under this section merely because the provider of the scheme may on any occasion refuse to accept a contribution below an amount prescribed for the purposes of this section on the grounds that it is below that amount.

Textual Amendments

Commencement Information

I44S. 26 partly in force; s. 26 in force for certain purposes at Royal Assent see s. 118(2)

I45S. 26 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Quality requirement: other personal pension schemesN.I.

27  The Department may by regulations make provision as to the quality requirement to be satisfied in the case of a personal pension scheme to which section 26 does not apply.

Commencement Information

I46S. 27 partly in force; s. 27 in force for certain purposes at Royal Assent see s. 118(2)

[F52Certification that quality requirement or alternative requirement is satisfied]N.I.

F5328—(1) The Department may by regulations provide that, subject to provision within subsection (6)(f), a scheme to which this section applies is to be taken to satisfy the relevant quality requirement in relation to [F54each of an employer's relevant jobholders ] if a certificate given in accordance with the regulations is in force in relation to the employer.

[F55(1A) In this section—

(a)“relevant jobholder” means a jobholder to whom the certificate in question applies;

(b)a reference to a scheme includes a reference to part of a scheme.]

(2) The certificate must [F56state—

(a)that], in relation to [F57relevant jobholders ] of the employer who are active members of the scheme, the scheme is in the opinion of the person giving the certificate able to satisfy the relevant quality requirement throughout the certification period[F58, or

(b)that, in relation to those jobholders, the scheme is in that person's opinion able to satisfy a prescribed alternative requirement throughout the certification period.]

(3) This section applies to—

(a)a money purchase scheme to which section 20 applies;

(b)a personal pension scheme to which section 26 applies;

(c)a hybrid scheme, to the extent that requirements within section 24(1)(a) apply.

[F59(3A) This section also applies to—

(a)a money purchase scheme that is an occupational pension scheme within section 18(b);

(b)a personal pension scheme of a prescribed description for which provision is made under section 27;

(c)a hybrid scheme that is an occupational pension scheme within section 18(b), to the extent prescribed.]

[F60(3B) This section also applies to a defined benefits scheme that has its main administration in the United Kingdom and is of a description prescribed under section 23A(1)(a).]

(4) The “relevant quality requirement”—

(a)for a scheme within subsection (3)(a), means the quality requirement under section 20;

(b)for a scheme within subsection (3)(b), means the quality requirement under section 26;

(c)for a scheme within paragraph (c) of subsection (3), means the requirements mentioned in that paragraph.

[F61(d)for a scheme within subsection (3A), means a prescribed requirement.]

[F62(e)for a scheme within subsection (3B), means the quality requirement under section 23A(1)(a).]

(5) Regulations may make further provision in relation to certification under this section.

(6) Regulations may in particular make provision—

(a)as to the period for which a certificate is in force (the “certification period”);

(b)as to the persons by whom a certificate may be given;

(c)as to procedures in connection with certification or where a certificate has been given;

(d)requiring persons to have regard to guidance issued by the Department;

(e)requiring an employer to calculate the amount of contributions that a scheme, and any [F63contribution agreements] , required to be paid by or in respect of [F64any relevant jobholder] in the certification period;

(f)as to cases where the requirements of a scheme, and any [F65contribution agreements] , as to payment of contributions by or in respect of [F66relevant jobholders] of an employer did not satisfy prescribed conditions.

(7) Provision within subsection (6)(f) includes in particular provision for a scheme not to be treated by virtue of regulations under this section as having satisfied the relevant quality requirement unless prescribed steps are taken (which may include the making of prescribed payments).

(8) In subsection (6) [F67“contribution agreements” means—

(a)the agreement] required, in the case of a scheme within subsection (3)(b), by section 26(4) and any agreement required, in the case of such a scheme, by section 26(6).[F68, or

(b)any agreement of the same or a similar kind that is required, in the case of a scheme within subsection (3A)(b), by regulations under section 27.]

(9) The Department may by order repeal this section.

Textual Amendments

F52S. 28 heading substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(2), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F54Words in s. 28(1) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(3), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F55S. 28(1A) inserted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(4), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F56Words in s. 28(2) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(5)(a), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F57Words in s. 28(2) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(5)(b), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F58S. 28(2)(b) and preceding word added (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(5)(c), 34(1)(3); S.R. 2012/233, art. 2(1)(b)S.R. 2012/233, art. 2(1)(b)

F59S. 28(3A) inserted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(2), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

F61S. 28(4)(d) added (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(3), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

F63Words in s. 28(6)(e) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(4), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

F64Words in s. 28(6)(e) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(6)(a), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F65Words in s. 28(6)(f) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(4), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

F66Words in s. 28(6)(f) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(6)(b), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

F67Words in s. 28(8) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(5)(a), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

F68S. 28(8)(b) and preceding word added (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 14(5)(b), 34(1)(3); S.R. 2012/233, art. 2(1)(c)

Commencement Information

I47S. 28 partly in force; s. 28 in force for certain purposes at Royal Assent see s. 118(2)

I48S. 28 in operation at 8.6.2012 in so far as not already in operation by S.R. 2012/236, art. 2(b)

TransitionalN.I.

Transitional periods for money purchase and personal pension schemesN.I.

29—(1) During the first transitional period F69...—

(a)sections 20(1)(b) and 26(4)(b) have effect as if for “3%” there were substituted “ 1% ”;

(b)sections 20(1)(c) and 26(5)(b) have effect as if for “8%” there were substituted “ 2% ”.

(2) The first transitional period is a prescribed period of at least one year, beginning with the coming into operation of section 20.

(3) During the second transitional period F70...—

(a)sections 20(1)(b) and 26(4)(b) have effect as if for “3%” there were substituted “ 2% ”;

(b)sections 20(1)(c) and 26(5)(b) have effect as if for “8%” there were substituted “ 5% ”.

(4) The second transitional period is a prescribed period of at least one year, beginning with the end of the first transitional period.

Textual Amendments

Commencement Information

I49S. 29 partly in force; s. 29 in force for certain purposes at Royal Assent see s. 118(2)

I50S. 29 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Transitional period for defined benefits and hybrid schemesN.I.

30—(1) Subsection (3) applies if, in relation to a person who on the employer's first enrolment date is a jobholder to whom section 3 applies, the conditions in subsection (2) are satisfied, and continue to be satisfied during the transitional period for defined benefits and hybrid schemes.

(2) The conditions are that—

(a)the jobholder has been employed by the employer for a continuous period beginning before the employer's first enrolment date,

(b)at a time in that period before the employer's first enrolment date, the jobholder became entitled to become an active member of a defined benefits scheme or [F71a defined benefits member of a hybrid scheme],

(c)the jobholder is, and has always since that time been, entitled to become an active member of a defined benefits scheme or [F72a defined benefits member of a hybrid scheme], and

(d)the scheme to which that entitlement relates is a qualifying scheme, and any scheme to which it has related on or after the employer's first enrolment date has been a qualifying scheme.

(3) [F73If by the end of the prescribed period the employer has given the jobholder notice that the employer intends to defer automatic enrolment until the end of the transitional period for defined benefits and hybrid schemes ], section 3 has effect in relation to the jobholder with the substitution for subsection (2) of the following subsection—

“(2) The employer must make prescribed arrangements by which the jobholder becomes

[F74(a)] an active member, with effect from the end of the transitional period for defined benefits and hybrid schemes, of an automatic enrolment scheme which is a defined benefits scheme [F75, or

(b)a defined benefits member, with effect from the end of that period, of an automatic enrolment scheme which is a hybrid scheme.”]

[F76A reference in this subsection to a scheme does not include a scheme to which section 30(11)(a) or (b) applies.]

(4) If [F77a notice is given under subsection (3) and at any later time] in the transitional period for defined benefits and hybrid schemes the condition in subsection (2)(c) or (d) ceases to be satisfied, subsection (5) applies instead of subsection (3) (and the day after the last day on which that condition is satisfied is referred to as “the closure date”).

(5) Where this subsection applies, section 3 has effect in relation to the jobholder with the substitution for subsection (2) of the following subsection—

“(2) The employer must make prescribed arrangements by which the jobholder either—

(a)becomes an active member, with effect from the closure date, of an automatic enrolment scheme which is a defined benefits scheme [F78other than a scheme to which section 30(11)(a) applies] or

[F79(aa)becomes a defined benefits member, with effect from the closure date of an automatic enrolment scheme which is a hybrid scheme [F80other than a scheme to which section 30(11)(b) applies] ;]

(b)becomes an active member, with effect from the automatic enrolment date, of an automatic enrolment scheme which is a money purchase scheme [F81or personal pension scheme].

[F82(c)becomes a money purchase member, with effect from the automatic enrolment date, of an automatic enrolment scheme which is a hybrid scheme.]

[F83(d)becomes an active member, with effect from the automatic enrolment date, of an automatic enrolment scheme which is a defined benefits scheme to which section 30(11)(b) applies, or

(e)becomes a defined benefits member, with effect from the automatic enrolment date, of an automatic enrolment scheme which is a hybrid scheme to which section 30(11)(b) applies.”]

(6) If the jobholder becomes a member of a scheme under arrangements made under subsection (2)(b) of that section (as substituted by subsection (5))—

(a)the employer's contributions are payable with effect from the automatic enrolment date;

(b)any requirement of the scheme F84... for contributions to be payable by the jobholder does not apply in respect of the period of the jobholder's membership before the closure date;

(c)regulations made for the purposes of section 3(2)(b) must secure that the jobholder may pay, within a period prescribed by the regulations, any contributions which would have been payable by the jobholder but for paragraph (b) of this subsection.

(7) Where subsection (3) or (5) [F85applies—

(a)section] 3(3) and (4) applies as if references to the automatic enrolment date were references to the [F86day with effect from which] arrangements would by virtue of this section fall to be made in respect of the jobholder.

[F87(b)section 4 applies as if—

(i)the reference in subsection (1) to the employer's staging date were a reference to the employer's first enrolment date;

(ii)in that subsection, for “the worker's automatic enrolment date is the deferral date” there were substituted “ the day with effect from which arrangements fall to be made by virtue of section 30 in respect of the jobholder is changed to the deferral date ”;

(iii)in subsections (4) to (6), references to the starting day were references to the day with effect from which arrangements would by virtue of this section fall to be made in respect of the jobholder.]

[F88(c)section 5(2) does not apply in relation to an automatic re-enrolment date that falls before the day with effect from which arrangements would by virtue of this section fall to be made in respect of the jobholder.]

[F89(7A) The Department may by regulations make provision about the form and content of a notice under subsection (3).]

(8) The transitional period for defined benefits and hybrid schemes is a prescribed period beginning with the day on which section 3 comes into operation.

(9) In this section, the “employer's first enrolment date” means the first day on which section 3 applies in the case of the employer (where that day falls within the transitional period for defined benefits and hybrid schemes).

[F90(10) For the purposes of this section—

(a)a person is a “money purchase member” of a hybrid scheme if—

(i)the person is an active member of the scheme, and

(ii)all the benefits accruing in respect of his or her membership are money purchase benefits, and

(b)a person is a “defined benefits member” of a hybrid scheme if the person is an active member of the scheme other than a money purchase member.]

[F91(11) In subsection (2) references to a scheme do not include—

(a)a defined benefits scheme that satisfies the quality requirement in relation to the jobholder by reason only of section 23A(1)(a), or

(b)a hybrid scheme if—

(i)the appropriate paragraph of section 24(1) for any provisions of the scheme is paragraph (b) (those provisions are referred to below as “the defined benefits section”),

(ii)the defined benefits section satisfies section 23A(1)(a) as applied by section 24(1)(b), and

(iii)the defined benefits section does not satisfy any of the other requirements mentioned in section 24(1)(b).]

Textual Amendments

F73Words in s. 30(3) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 15(2), 34(1)(3); S.R. 2012/265, art. 2(1)(d)

F74Word in s. 30(3) (in the substituted ss. (2)) inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 39(3)(a), 53(1); S.R. 2015/307, art. 2(1)(e)

F75Words in s. 30(3) (in the substituted ss. (2)) substituted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 39(3)(b), 53(1); S.R. 2015/307, art. 2(1)(e)

F77Words in s. 30(4) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 15(3), 34(1)(3); S.R. 2012/265, art. 2(1)(d)

F78Words in s. 30(5) (in the substituted ss. (2)) inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 38(8)(a), 53(1); S.R. 2015/307, art. 2(1)(d)

F79Words in s. 30(5) (in the substituted ss. (2)) substituted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 39(4)(a), 53(1); S.R. 2015/307, art. 2(1)(e)

F80Words in s. 30(5) (in the substituted ss. (2)) inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 38(8)(b), 53(1); S.R. 2015/307, art. 2(1)(d)

F81Words in s. 30(5) (in the substituted ss. (2)) inserted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 16(2), 34(1)(3); S.R. 2012/265, art. 2(1)(e)

F82Words in s. 30(5) (in the substituted ss. (2)) inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 39(4)(b), 53(1); S.R. 2015/307, art. 2(1)(e)

F83Words in S. 30(5) (in the substituted ss. (2)) inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 38(8)(c), 53(1); S.R. 2015/307, art. 2(1)(d)

F84Words in s. 30(6)(b) omitted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by virtue of Pensions Act (Northern Ireland) 2012 (c. 3), ss. 16(3), 34(1)(3); S.R. 2012/265, art. 2(1)(e)

F85Words in s. 30(7) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(6)(a), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F86Words in s. 30(7) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(6)(b), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F87S. 30(7)(b) added (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 7(6)(c), 34(1)(3); S.R. 2012/265, art. 2(1)(b)

F89S. 30(7A) inserted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 15(4), 34(1)(3); S.R. 2012/265, art. 2(1)(d)

Modifications etc. (not altering text)

C22S. 30(5)-(7) applied (with modifications) (conditional) (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 39(7), 53(1); S.R. 2015/307, art. 2(1)(e)

Commencement Information

I51S. 30 partly in force; s. 30 in force for certain purposes at Royal Assent see s. 118(2)

I52S. 30 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

MiscellaneousN.I.

Effect of freezing order [F92, assessment period or pause order] N.I.

31—(1) Where a jobholder is an active member of a qualifying scheme and a freezing event occurs in relation to the scheme, the jobholder does not, for the purposes of this Chapter, cease to be an active member of the scheme, and the scheme does not, for those purposes, cease to be a qualifying scheme, by virtue of any relevant provision.

(2) Where a worker is an active member of a scheme that satisfies the requirements of section 9 and a freezing event occurs in relation to the scheme, the worker does not, for the purposes of section 9(1)(c), cease to be an active member of the scheme by virtue of any relevant provision.

(3) In this section—

“freezing event” in relation to a scheme means—

(a)

the making of a freezing order under Article 19 of the Pensions (Northern Ireland) Order 2005 (NI 1) (in this Act referred to as “the 2005 Order”) in relation to the scheme, F93...

(b)

the beginning of an assessment period within the meaning of Article 116 of that Order in relation to the scheme [F94, or

(c)

the making of a pause order under section 95 of the Pension Schemes Act 2021;]

“relevant provision” means—

(a)

in relation to a freezing order, provision contained in the order, or the provision made with respect to the order by Article 19 of the 2005 Order;

(b)

in relation to an assessment period, the provision made with respect to the period by Article 117 of that Order.

(c)

[F95in relation to a pause order, provision contained in the order or the provision made with respect to the order by section 95 of the Pension Schemes Act 2021.]

Textual Amendments

F92Words in s. 31 heading substituted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 6 para. 22(2)

F93Word in s. 31(3) omitted (11.2.2021 for specified purposes) by virtue of Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 6 para. 22(3)(a)(i)

F94Words in s. 31(3) inserted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 6 para. 22(3)(a)(ii)

F95Words in s. 31(3) inserted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 6 para. 22(3)(b)

Commencement Information

I53S. 31 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Power of trustees [F96or managers] to modify by resolutionN.I.

32—(1) The trustees [F97or managers] of an occupational pension scheme may by resolution modify the scheme—

(a)with a view to enabling the scheme to comply with the conditions in section 17(2), or

(b)by increasing the amount required to be paid in contributions in order for the scheme[F98to satisfy—

(i)the requirements contained in section 20(1),

(ii)those requirements as modified under section 24(1)(a), or

(iii)a requirement prescribed under section 28(2)(b).]

(2) An increase under subsection (1)(b) may be made only—

(a)by increasing the amount of any contribution, directly or by modifying the basis on which it is calculated, or

(b)by increasing the frequency of any contributions.

(3) No modification may be made by virtue of subsection (1) without the consent of the employer in relation to the scheme.

(4) In the application of subsection (3) to a scheme in relation to which there is more than one employer, references to the employer have effect as if they were references to a person nominated by the employers, or by the scheme, to act as the employers' representative for the purposes of this section or, if no such nomination is made, to all of the employers.

(5) Regulations may provide that this section does not apply to occupational pension schemes within a prescribed class or description.

Textual Amendments

F96Words in s. 32 heading inserted (30.6.2012) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 17, 34(3); S.R. 2012/265, art. 2(2)(b)

F98Words in s. 32(1)(b) substituted (2.6.2012 for specified purposes, 7.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 13(7), 34(1)(3); S.R. 2012/233, art. 2(1)(b)

Commencement Information

I54S. 32 partly in force; s. 32 in force for certain purposes at Royal Assent see s. 118(2)

I55S. 32 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Deduction of contributionsN.I.

33—(1) An employer who arranges for a person to become a member of a scheme in accordance with section 3(2), 5(2) or 7(3), or of an occupational pension scheme in accordance with section 9(2), may deduct the person's contributions to the scheme from the person's remuneration and pay them to the trustees or managers of the scheme (in the case of an occupational pension scheme) or the provider of the scheme (in the case of a personal pension scheme).

(2) Regulations prescribing arrangements for the purposes of section 3(2), 5(2), 7(3) or 9(2), may require the employer to make such a deduction or payment at any time on or after the date with effect from which the jobholder is to become an active member of a scheme under the arrangements.

Commencement Information

I56S. 33 partly in force; s. 33 in force for certain purposes at Royal Assent see s. 118(2)

I57S. 33 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

CHAPTER 2N.I.COMPLIANCE

Effect of failure to complyN.I.

Effect of failure to complyN.I.

34—(1) Contravention of any of the employer duty provisions does not give rise to a right of action for breach of statutory duty.

(2) But nothing in the employer duty provisions or this Chapter affects any right of action arising apart from those provisions.

(3) In this Chapter, references to the employer duty provisions are references to any provision of sections 2 to 11 or of regulations under those sections.

Commencement Information

I58S. 34 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Compliance notices and unpaid contributions noticesN.I.

Compliance noticesN.I.

35—(1) The Regulator may issue a compliance notice to a person if it is of the opinion that the person has contravened one or more of the employer duty provisions.

(2) A compliance notice is a notice directing the person to whom it is issued to take, or refrain from taking, the steps specified in the notice in order to remedy the contravention.

(3) A compliance notice may, in particular—

(a)state the period within which any step must be taken or must cease to be taken;

(b)require the person to whom it is issued to provide within a specified period specified information relating to the contravention;

(c)require the person to inform the Regulator, within a specified period, how the person has complied or is complying with the notice;

(d)state that, if the person fails to comply with the requirements of the notice, the Regulator may issue a fixed penalty notice under section 40.

(4) The steps specified in the notice may, in particular, include such steps as the Regulator thinks appropriate for placing the worker in the same position (as nearly as possible) as if the contravention had not occurred.

(5) If the compliance notice is issued in respect of a failure to comply with an enrolment duty and the specified steps relate to membership of a defined benefits scheme or a hybrid scheme, the notice may, in particular, require the employer to ensure that the worker is entitled to the same benefits under the scheme as if the employer had complied with that duty.

Commencement Information

I59S. 35 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Third party compliance noticesN.I.

36—(1) The Regulator may issue a third party compliance notice if it is of the opinion that—

(a)a person has contravened one or more of the employer duty provisions,

(b)the contravention is or was, wholly or partly, a result of a failure of another person (the “third party”) to do any thing, and

(c)that failure is not itself a contravention of any of the employer duty provisions.

(2) A third party compliance notice is a notice directing the third party to take, or refrain from taking, the steps specified in the notice in order to remedy or prevent a recurrence of the failure.

(3) A third party notice may, in particular—

(a)state the period within which any step must be taken or must cease to be taken;

(b)require the third party to inform the Regulator, within a specified period, how the third party has complied or is complying with the notice;

(c)state that, if the third party fails to comply with the requirements of the notice, the Regulator may issue a fixed penalty notice under section 40.

(4) A third party notice may give the third party a choice between different ways of remedying or preventing the recurrence of the third party's failure.

Commencement Information

I60S. 36 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Unpaid contributions noticesN.I.

37—(1) The Regulator may issue an unpaid contributions notice to an employer if it is of the opinion that relevant contributions have not been paid on or before the due date.

(2) An unpaid contributions notice is a notice requiring an employer to pay into a pension scheme by a specified date an amount in respect of relevant contributions that have not been paid.

(3) “Due date” has the meaning prescribed.

(4) An unpaid contributions notice may, in particular—

(a)specify the scheme to which the contributions are due;

(b)specify the workers, or category of workers, in respect of whom the contributions are due;

(c)state the period in respect of which the contributions are due;

(d)state the due date in respect of the contributions;

(e)require the employer to take such other steps in relation to remedying the failure to pay the contributions as the Regulator considers appropriate;

(f)state that if the employer fails to comply with the notice, the Regulator may issue a fixed penalty notice under section 40.

(5) In this section, “employer” in relation to a worker means the person by whom the worker is or, if the employment has ceased, was employed.

Commencement Information

I61S. 37 partly in force; s. 37 in force for certain purposes at Royal Assent see s. 118(2)

I62S. 37 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Calculation and payment of contributionsN.I.

38—(1) This section applies to—

(a)a compliance notice issued to an employer in respect of a contravention of section 2(1) or a failure to comply with an enrolment duty;

(b)an unpaid contributions notice.

(2) The notice may, in particular, include—

(a)a requirement to calculate the amount of relevant contributions that are of a description specified in the notice (“unpaid relevant contributions”);

(b)if the contributions are being paid within the prescribed period after the appropriate date, a requirement to pay an amount equal to the amount of unpaid relevant contributions within section 39(2)(a);

(c)if the contributions are not being paid within the prescribed period after the appropriate date, a requirement to pay (on the employer's own account) an amount equal to the amount of unpaid relevant contributions;

(d)if paragraph (b) applies, a requirement to ensure—

(i)that the worker is not required to pay an amount equal to the balance of the unpaid relevant contributions during the prescribed period, and

(ii)that, if the worker chooses to pay that amount, it may be paid in instalments;

(e)if the contributions are payable to a money purchase scheme, a hybrid scheme or a personal pension scheme, a requirement to pay interest on the amount required by the notice to be paid in respect of unpaid relevant contributions, at a rate and in respect of a period determined in accordance with regulations.

(3) The Department may by regulations make provision about the way in which the Regulator may (without prejudice to subsection (2)(a)) estimate the amount of contributions that an employer has failed to pay on behalf or in respect of a worker.

(4) Regulations under subsection (3) may include, in particular, provision about the sources of information that the Regulator may use in estimating that amount, other than information provided by the employer.

(5) In this section, “appropriate date” means—

(a)in the case of a compliance notice, such date as may be specified in the notice;

(b)in the case of an unpaid contributions notice, the due date within the meaning of section 37(3).

(6) In this section, “employer” in relation to a worker means the person by whom the worker is or, if the employment has ceased, was employed.

Commencement Information

I63S. 38 partly in force; s. 38 in force for certain purposes at Royal Assent see s. 118(2)

I64S. 38 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Meaning of “relevant contributions”N.I.

39—(1) In sections 37 and 38 “relevant contributions” are—

(a)in relation to a jobholder, employer contributions payable to a qualifying scheme in relation to the jobholder;

(b)in relation to a worker to whom section 9 applies, employer contributions payable to a pension scheme which satisfies the requirements of that section.

(2) In subsection (1), “employer contributions” means contributions payable by the employer—

(a)on the employer's own account (but in respect of the worker), or

(b)on behalf of the worker out of deductions from the worker's earnings.

Commencement Information

I65S. 39 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Penalty noticesN.I.

Fixed penalty noticesN.I.

40—(1) The Regulator may issue a fixed penalty notice to a person if it is of the opinion that the person has failed to comply with—

(a)a compliance notice under section 35,

(b)a third party compliance notice under section 36,

(c)an unpaid contributions notice under section 37, or

(d)a notice issued under Article 67 of the 2005 Order (provision of information) [F99, so far as relevant to the exercise of any of its functions under or by virtue of this Part ] .

(2) The Regulator may issue a fixed penalty notice to a person if it is of the opinion that the person has contravened—

(a)any provision of regulations under section 3(2) or 5(2) (prescribed arrangements for automatic enrolment or re-enrolment),

(b)any provision of regulations under section 7(4) (prescribed arrangements: jobholder's right to opt in),

(c)section 8(2)(b) (refund of contributions if jobholder opts out of scheme membership), and any provision of regulations under that provision,

(d)section 10 (requirement to give information to workers) and any provision of regulations under that section, or

(e)any provision of regulations under section 59 (requirement to keep records).

(3) A fixed penalty notice is a notice requiring the person to whom it is issued to pay a penalty within the period specified in the notice.

(4) The penalty—

(a)is to be determined in accordance with regulations, and

(b)must not exceed £50,000.

(5) A fixed penalty notice must—

(a)state the amount of the penalty;

(b)state the date, which must be at least four weeks after the date on which the notice is issued, by which the penalty must be paid;

(c)state the period to which the penalty relates;

(d)if the notice is issued under subsection (1), specify the failure to which the notice relates;

(e)if the notice is issued under subsection (2), specify the provision or provisions that have been contravened;

(f)if the notice is issued under subsection (1), state that, if the failure to comply continues, the Regulator may issue an escalating penalty notice under section 41;

(g)notify the person to whom the notice is issued of the review process under section 43 and the right of referral to [F100a tribunal] under section 44.

Textual Amendments

Commencement Information

I66S. 40 partly in force; s. 40 in force for certain purposes at Royal Assent see s. 118(2)

I67S. 40(1)(a)-(c) in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

I68S. 40(1)(d) in operation at 30.6.2012 for specified purposes by S.R. 2012/266, art. 2, Sch. Pt. 1

I69S. 40(2)-(5) in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Escalating penalty noticesN.I.

41—(1) The Regulator may issue an escalating penalty notice to a person if it is of the opinion that the person has failed to comply with—

(a)a compliance notice under section 35,

(b)a third party compliance notice under section 36,

(c)an unpaid contributions notice under section 37, or

(d)a notice under Article 67 of the 2005 Order (provision of information) [F101, so far as relevant to the exercise of any of its functions under or by virtue of this Part ] .

(2) But the Regulator may not issue an escalating penalty notice if—

(a)it relates to failure to comply with a notice within subsection (1)(a), (b) or (c), the person to whom that notice was issued has applied for a review of it under section 43, and any review has not been completed;

(b)it relates to failure to comply with any notice within subsection (1), the person has exercised the right of referral to [F102a tribunal] under section 44 in respect of a fixed penalty notice issued in relation to that notice, and the reference has not been determined.

(3) An escalating penalty notice is a notice requiring a person to pay an escalating penalty if the person fails to comply with a notice referred to in subsection (1) before a specified date.

(4) An escalating penalty is a penalty which is calculated by reference to a prescribed daily rate.

(5) The prescribed daily rate—

(a)is to be determined in accordance with regulations, and

(b)must not exceed £10,000.

(6) An escalating penalty notice must—

(a)specify the failure to which the notice relates;

(b)state that, if the person fails to comply with the notice referred to in subsection (1) before a specified date, the person will be liable to pay an escalating penalty;

(c)state the daily rate of the escalating penalty and the way in which the penalty is calculated;

(d)state the date from which the escalating penalty will be payable, which must not be earlier than the date specified in the fixed penalty notice under section 40(5)(b);

(e)state that the escalating penalty will continue to be payable at the daily rate until the date on which the person complies with the notice referred to in subsection (1) or such earlier date as the Regulator may determine;

(f)notify the person of the review process under section 43 and the right of referral to [F103a tribunal] under section 44.

Textual Amendments

Commencement Information

I70S. 41 partly in force; s. 41 in force for certain purposes at Royal Assent see s. 118(2)

I71S. 41(1)(a)-(c) in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

I72S. 41(1)(d) in operation at 30.6.2012 for specified purposes by S.R. 2012/266, art. 2, Sch. Pt. 1

I73S. 41(2)-(6) in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Penalty notices: recoveryN.I.

42—(1) Any penalty payable under section 40 or section 41 is recoverable by the Regulator.

(2) The Regulator must pay into the Consolidated Fund any penalty recovered under this section.

Modifications etc. (not altering text)

C23S. 42 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 17(5)(a), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

C24S. 42 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 18(7)(a), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

Commencement Information

I74S. 42 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Reviews and referencesN.I.

Review of noticesN.I.

43—(1) The Regulator may review a notice to which this section applies—

(a)on the written application of the person to whom the notice was issued, or

(b)if the Regulator otherwise considers it appropriate.

(2) This section applies to—

(a)a compliance notice issued under section 35;

(b)a third party compliance notice issued under section 36;

(c)an unpaid contributions notice issued under section 37;

(d)a fixed penalty notice issued under section 40;

(e)an escalating penalty notice issued under section 41.

(3) Regulations may prescribe the period within which—

(a)an application to review a notice may be made under subsection (1)(a);

(b)a notice may be reviewed under subsection (1)(b).

(4) On a review of a notice, the effect of the notice is suspended for the period beginning when the Regulator determines to carry out the review and ending when the review is completed.

(5) In carrying out a review, the Regulator must consider any representations made by the person to whom the notice was issued.

(6) The Regulator's powers on a review include power to—

(a)confirm, vary or revoke the notice;

(b)substitute a different notice.

Modifications etc. (not altering text)

C25S. 43 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 17(5)(b), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

C26S. 43 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 18(7)(b), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

Commencement Information

I75S. 43 partly in force; s. 43 in force for certain purposes at Royal Assent see s. 118(2)

I76S. 43 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

References to [F104First-tier Tribunal or Upper Tribunal]N.I.

44—(1) A person to whom a notice is issued under section 40 or section 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to [F105the Tribunal] in respect of—

(a)the issue of the notice;

(b)the amount of the penalty payable under the notice.

(2) The conditions are—

(a)that the Regulator has completed a review of the notice under section 43;

(b)that the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review.

(3) On a reference to [F106the Tribunal] in respect of a notice, the effect of the notice is suspended for the period beginning when the Tribunal receives notice of the reference and ending—

(a)when the reference is withdrawn or completed, or

(b)if the reference is made out of time, on the Tribunal determining not to allow the reference to proceed.

(4) For the purposes of subsection (3), a reference is completed when—

(a)the reference has been determined,

(b)the Tribunal has remitted the matter to the Regulator, and

(c)any directions of the Tribunal for giving effect to its determination have been complied with.

[F107(4A) In this section “the Tribunal”, in relation to a reference under this section, means—

(a)the Upper Tribunal, in any case where it is determined by or under Tribunal Procedure Rules that the Upper Tribunal is to hear the reference;

(b)the First-tier Tribunal, in any other case.]

F108(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F109(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C27S. 44 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 17(5)(c), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

C28S. 44 applied (10.8.2021 for specified purposes) by Pension Schemes Act (Northern Ireland) 2021 (c. 6), ss. 18(7)(c), 44(1)(a)(iii) (with transitional provisions in S.R. 2021/234, art. 3)

Commencement Information

I77S. 44 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Offences and monitoringN.I.

Offences of failing to complyN.I.

45—(1) An offence is committed by an employer who wilfully fails to comply with—

(a)the duty under section 3(2) (automatic enrolment),

(b)the duty under section 5(2) (automatic re-enrolment), or

(c)the duty under section 7(3) (jobholder's right to opt in).

(2) A person guilty of an offence under this section is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both;

(b)on summary conviction to a fine not exceeding the statutory maximum.

Commencement Information

I78S. 45 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Offences by bodies corporateN.I.

46  For the purposes of an offence under section 45, section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words “the liability of whose members is limited” and where the affairs of a body corporate are managed by its members, applies in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director of the body corporate.

Commencement Information

I79S. 46 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Offences by partnerships and unincorporated associationsN.I.

47—(1) Proceedings for an offence under section 45 alleged to have been committed by a partnership or an unincorporated association may be brought in the name of the partnership or association.

(2) For the purposes of such proceedings—

(a)rules of court relating to the service of documents are to have effect as if the partnership or association were a body corporate;

(b)Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26) applies in relation to the partnership or association as it applies in relation to a body corporate.

(3) A fine imposed on a partnership or association on its conviction of an offence under section 45 is to be paid out of the funds of the partnership or association.

(4) Subsection (5) applies where an offence under section 45 committed by a partnership is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to any neglect on the part of a partner.

(5) The partner, as well as the partnership, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(6) Subsection (7) applies where an offence under section 45 committed by an unincorporated association is proved—

(a)to have been committed with the consent or connivance of an officer of the association, or

(b)to be attributable to any neglect on the part of an officer of the association.

(7) The officer, as well as the association, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(8) “Officer” in this section means—

(a)an officer of the association or a member of its governing body, or

(b)a person purporting to act in such capacity.

(9) “Partner” in this section includes a person purporting to act as a partner.

Commencement Information

I80S. 47 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Offences of providing false or misleading informationN.I.

48  In Article 75(1)(a) of the 2005 Order (offences of providing false or misleading information)—

(a)at the end of head (iv) add

“or

(v)regulations under section 11 of the Pensions (No. 2) Act (Northern Ireland) 2008 (information to be given to the Pensions Regulator);”;

(b)omit “or” at the end of head (iii).

Commencement Information

I81S. 48 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Monitoring of employers' payments to personal pension schemesN.I.

49  In section 107A of the Pension Schemes Act, at the end add—

“(18) In this section, “employee” includes a jobholder within the meaning of section 1 of the Pensions (No. 2) Act (Northern Ireland) 2008 and “employer” is to be read accordingly.”.

Commencement Information

I82S. 49 in operation at 3.1.2012 for specified purposes by S.R. 2011/441, art. 2(a)

I83S. 49 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

CHAPTER 3N.I.SAFEGUARDS: EMPLOYMENT AND PRE-EMPLOYMENT

Prohibited recruitment conductN.I.

Prohibited recruitment conductN.I.

50—(1) An employer contravenes this section if any statement made or question asked by or on behalf of the employer for the purposes of recruitment indicates (expressly or impliedly) that an application for employment with the employer may be determined by reference to whether or not an applicant might opt out of automatic enrolment.

(2) The reference in subsection (1) to a statement made or a question asked for the purposes of recruitment is a reference to one made or asked in the course of any of the following—

(a)inviting applications for employment;

(b)requesting information from an applicant, referee or other person in connection with an application for employment;

(c)providing information about employment;

(d)proposing terms or conditions of employment.

(3) The reference in subsection (1) to an applicant opting out of automatic enrolment is a reference to the applicant, if becoming at any time in the course of the employment a jobholder to whom section 3 or 5 applies, giving notice in accordance with section 8 in relation to arrangements made by the employer under the relevant section.

(4) In this section and sections 51 and 52, “employer” means the prospective employer in relation to any employment.

Commencement Information

I84S. 50 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Compliance noticesN.I.

51—(1) The Regulator may issue a compliance notice to an employer if it is of the opinion that the employer has contravened section 50.

(2) A compliance notice is a notice directing the employer to take, or refrain from taking, the steps specified in the notice in order to—

(a)remedy the contravention, or

(b)prevent the contravention being repeated.

(3) A compliance notice may, in particular—

(a)state the period within which any step must be taken or must cease to be taken;

(b)require the employer to provide within a specified period specified information relating to the contravention;

(c)require the employer to inform the Regulator, within a specified period, how the employer has complied or is complying with the notice;

(d)state that, if the employer fails to comply with the requirements of the notice, the Regulator may issue a penalty notice under section 52.

(4) A compliance notice must specify the contravention to which the notice relates.

Commencement Information

I85S. 51 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Penalty noticesN.I.

52—(1) The Regulator may issue a penalty notice to an employer if it is of the opinion that the employer—

(a)has contravened section 50, or

(b)has failed to comply with a compliance notice under section 51.

(2) A penalty notice is a notice requiring the person to whom it is issued to pay a penalty within the period specified in the notice.

(3) The penalty—

(a)is to be determined in accordance with regulations, and

(b)must not exceed £50,000.

(4) A penalty notice must—

(a)state the amount of the penalty;

(b)state the date, which must be at least four weeks after the date on which the notice is issued, by which the penalty must be paid;

(c)specify the contravention or failure to which the notice relates;

(d)notify the employer of the review process under section 43 and the right to make a reference under section 44 (as applied by section 53).

(5) Section 42 (penalty notices: recovery) applies to a penalty payable under this section, and to a notice under this section, as it applies to a penalty payable under section 40, and to a notice under that section.

Commencement Information

I86S. 52 partly in force; s. 52 in force for certain purposes at Royal Assent see s. 118(2)

I87S. 52 in operation at 30.6.2012 in so far as not already in operation by S.R. 2012/266, art. 2, Sch. Pt. 1

Review of notices and references to the [F110First-tier Tribunal or Upper Tribunal]N.I.

53—(1) Section 43 (review of notices) also applies to a compliance notice issued under section 51 and to a penalty notice issued under section 52.

(2) Section 44 (references to the [F111First-tier Tribunal or Upper Tribunal]) applies in relation to a penalty notice issued under section 52 as it applies in relation to a notice issued under section 40 or 41.

Textual Amendments

Commencement Information

I88S. 53 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

InducementsN.I.

InducementsN.I.

54—(1) An employer contravenes this section if the employer takes any action for the sole or main purpose of—

(a)inducing a worker to give up membership of a relevant scheme without becoming an active member of another relevant scheme [F112with effect from—

(i)the day after the membership is given up, or

(ii)a day within the prescribed period (if a period is prescribed)], or

(b)inducing a jobholder to give a notice under section 8 without becoming an active member of a qualifying scheme [F113with effect from—

(i)the day on which the jobholder became an active member of the scheme to which the notice relates, or

(ii)a day within the prescribed period (if a period is prescribed)].

(2) Section 35 applies in relation to a contravention of this section as it applies in relation to a contravention of section 2(1), and sections 38 to 44 apply accordingly.

(3) But the Regulator may not issue a compliance notice in respect of a contravention of this section unless the contravention occurred within the prescribed period before—

(a)the time when a complaint was made to the Regulator about the contravention, or

(b)the time when the Regulator informed the employer of an investigation of the contravention, if no complaint was made before that time.

(4) A compliance notice in respect of a contravention of this section may direct the employer to take or refrain from taking specified steps in order to prevent the contravention being repeated.

(5) For the purposes of this section a worker gives up membership of a relevant scheme if the worker—

(a)takes action or makes an omission by which the worker, without ceasing to be employed by the employer, ceases to be an active member of the scheme, or

(b)requests or authorises the employer to take such action or to make such an omission.

(6) In this section, “relevant scheme” means—

(a)in relation to a jobholder, a qualifying scheme;

(b)in relation to a worker to whom section 9 applies, a scheme which satisfies the requirements of that section.

Textual Amendments

F112Words in s. 54(1)(a) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(6)(a), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

F113Words in s. 54(1)(b) substituted (2.6.2012 for specified purposes, 30.6.2012 in so far as not already in operation) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 5(6)(b), 34(1)(3); S.R. 2012/265, art. 2(1)(a)

Modifications etc. (not altering text)

C29S. 54: power to exclude conferred by SI 2005/255 (N.I. 1), art. 268A (as inserted (2.6.2012 for specified purposes) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 19, 34(1)(3))

Commencement Information

I89S. 54 partly in force; s. 54 in force for certain purposes at Royal Assent see s. 118(2)

I90S. 54 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 1

Protection of employment rightsN.I.

The right not to suffer detrimentN.I.

55—(1) A worker has the right not to be subjected to any detriment by an act, or a deliberate failure to act, by the worker's employer, done on the ground that—

(a)any action was taken, or was proposed to be taken, with a view to enforcing in favour of the worker a requirement to which this section applies,

(b)the employer was prosecuted for an offence under section 45 as a result of action taken for the purpose of enforcing in favour of the worker a requirement to which this section applies, or

(c)any provision of Chapter 1 applies to the worker, or will or might apply.

(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1)—

(a)whether or not the requirement applies in favour of the worker, or

(b)whether or not the requirement has been contravened,

but, for that subsection to apply, the claim that the requirement applies and, if applicable, the claim that it has been contravened must be made in good faith.

(3) This section applies to any requirement imposed on the employer by or under any provision of Chapter 1.

(4) This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 11 of the Employment Rights (Northern Ireland) Order 1996 (NI 16) (in this Act referred to as “the Employment Rights Order”) (unfair dismissal).

(5) In this section references to enforcing a requirement include references to securing its benefit in any way.

Commencement Information

I91S. 55 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Enforcement of the rightN.I.

56—(1) A worker may present a complaint to an industrial tribunal that the worker has been subjected to a detriment in contravention of section 55.

(2) Subject to the following provisions of this section, the provisions of Articles 71(2) to (4) and 72 of the Employment Rights Order (complaints to industrial tribunals and remedies), apply in relation to a complaint under this section as they apply in relation to a complaint under Article 71 of that Order, but taking references in those provisions to the employer as references to the employer within the meaning of section 55(1).

(3) Where—

(a)the detriment to which the worker is subjected is the termination of the worker's contract, but

(b)that contract is not a contract of employment,

any compensation awarded under Article 72 of the Employment Rights Order by virtue of subsection (2) must not exceed the limit specified in subsection (4).

(4) The limit is the total of—

(a)the sum which would be the basic award for unfair dismissal, calculated in accordance with Article 153 of the Employment Rights Order, if the worker had been an employee within the meaning of that Order and the contract terminated had been a contract of employment, and

(b)the sum for the time being specified in Article 158(1) of that Order which is the limit for a compensatory award to a person calculated in accordance with Article 157 of that Order.

(5) Where the worker has been working under arrangements which do not fall to be regarded as a worker's contract for the purposes of the Employment Rights Order, the worker is to be treated for the purposes of subsections (3) and (4) as if any arrangements under which the worker has been working constituted a worker's contract falling within Article 3(3)(b) of that Order.

(6) In Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996 (NI 18) (proceedings where conciliation is available), after sub-paragraph (q) add

“, or

(r)under section 56 of the Pensions (No. 2) Act (Northern Ireland) 2008.”.

Commencement Information

I92S. 56 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Right of employee not to be unfairly dismissedN.I.

57—(1) The Employment Rights Order is amended as follows.

(2) After Article 135C (flexible working) insert—

“Pension enrolment

135D—(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)any action was taken, or was proposed to be taken, with a view to enforcing in favour of the employee a requirement to which this Article applies;

(b)the employer was prosecuted for an offence under section 45 of the Pensions (No. 2) Act (Northern Ireland) 2008 as a result of action taken for the purposes of enforcing in favour of the employee a requirement to which this Article applies; or

(c)any provision of Chapter 1 of that Part of that Act applies to the employee, or will or might apply.

(2) It is immaterial for the purposes of sub-paragraph (a) or (b) of paragraph (1)—

(a)whether or not the requirement applies in favour of the employee, or

(b)whether or not the requirement has been contravened,

but, for that paragraph to apply, the claim that the requirement applies and, if applicable, the claim that it has been contravened must be made in good faith.

(3) This Article applies to any requirement imposed on the employer by or under any provision of Chapter 1 of Part 1 of the Pensions (No. 2) Act (Northern Ireland) 2008.

(4) In this Article references to enforcing a requirement include references to securing its benefit in any way.”.

(3) In Article 137 (redundancy as unfair dismissal), in paragraph (1)(c) (which refers to any of paragraphs (2A) to (7I) of that Article applying) for “(7I)” substitute “ (7J) ”.

(4) After paragraph (7I) of that Article insert—

“(7J) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in paragraph (1) of Article 135D (read with paragraph (2) of that Article).”.

(5) In Article 140 (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period is required) after sub-paragraph (fh) insert—

“(fi)paragraph (1) of Article 135D (read with paragraph (2) of that Article) applies,”.

(6) In Article 143(2) (cases where employee may complain of unfair dismissal despite participation in unofficial industrial action), after sub-paragraph (d) insert—

“(dd)Article 135D applies,”.

(7) In Article 144(2) (cases where industrial tribunal to determine whether dismissal of an employee is unfair despite limitation in paragraph (1) of that Article), after sub-paragraph (d) insert—

“(dd)Article 135D applies;”.

Commencement Information

I93S. 57(1)(2)(4)(5)(6)(7) in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Restrictions on agreements to limit operation of this PartN.I.

58—(1) Any provision in any agreement (whether a worker's contract or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of this Part, or

(b)to preclude a person from bringing proceedings under section 56 before an industrial tribunal.

(2) The fact that an agreement is to any extent void under subsection (1) does not entitle the employer to recover any property transferred, or the value of any benefit conferred, as an inducement to enter into, or otherwise in connection with, the agreement.

(3) Subsection (1) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under [F114any of Articles 20A to 20C] of the Industrial Tribunals (Northern Ireland) Order 1996 (NI 18) (conciliation).

(4) Subsection (1) does not apply to any agreement to refrain from instituting or continuing before an industrial tribunal any proceedings within Article 20(1)(r) of the Industrial Tribunals (Northern Ireland) Order 1996 (NI 18) (proceedings under this Act where conciliation is available) if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

(5) For the purposes of subsection (4) the conditions regulating compromise agreements under this Act are that—

(a)the agreement must be in writing,

(b)the agreement must relate to the particular proceedings,

(c)the worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal,

(d)there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the worker in respect of loss arising in consequence of the advice,

(e)the agreement must identify the adviser, and

(f)the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

(6) A person is a relevant independent adviser for the purposes of subsection (5)(c) if that person—

(a)is a qualified lawyer,

(b)is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

(c)works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

(d)is a person of a description specified in an order made by the Department.

(7) But a person is not a relevant independent adviser for the purposes of subsection (5)(c) in relation to the worker—

(a)if the person is employed by, or is acting in the matter for, the employer or an associated employer,

(b)in the case of a person within subsection (6)(b) or (c), if the trade union or advice centre is the employer or an associated employer,

(c)in the case of a person within subsection (6)(c), if the worker makes a payment for the advice received from the person, or

(d)in the case of a person of a description specified in an order under subsection (6)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(8) In this section “qualified lawyer” means—

(a)a barrister (whether in practice as such or employed to give legal advice), or

(b)a solicitor who holds a practising certificate.

(9) For the purposes of this section any two employers are associated if—

(a)one is a company of which the other (directly or indirectly) has control, or

(b)both are companies of which a third person (directly or indirectly) has control,

and “associated employer” is to be read accordingly.

Textual Amendments

Commencement Information

I94S. 58 partly in force; s. 58 in force for certain purposes at Royal Assent see s. 118(2)

I95S. 58 in operation at 30.6.2012 in so far as not already in force by S.R. 2012/266, art. 2, Sch. Pt. 1

CHAPTER 4N.I.SUPPLEMENTARY PROVISION ABOUT COMPLIANCE AND INFORMATION-SHARING

Records and informationN.I.

Requirement to keep recordsN.I.

59—(1) For the purposes of Chapter 1 or 2, the Department may by regulations make provision requiring any person—

(a)to keep, in such form and manner as may be prescribed, such records as may be prescribed;

(b)to preserve those records for such period, not exceeding 6 years, as may be prescribed;

(c)to provide those records [F115to the Regulator on receiving a notification requesting them] .

(2) Regulations under subsection (1) may provide that Article 10 of the 1995 Order (civil penalties) applies to a person who fails to comply with those requirements.

Textual Amendments

Commencement Information

I96S. 59 partly in force; s. 59 in force for certain purposes at Royal Assent see s. 118(2)

Powers to require information and to enter premisesN.I.

60—(1) The 2005 Order is amended as follows.

(2) In Article 67 (provision of information), after paragraph (1) insert—

“(1A) If the Regulator requires information which is relevant to the exercise of its functions under Chapter 2 of Part 1 of the Pensions (No. 2) Act (Northern Ireland) 2008 or section 51 of that Act, the Regulator may, by notice in writing, require a person to whom paragraph (2) applies—

(a)to furnish the Regulator with an explanation of any document or information required under paragraph (1);

(b)to attend before the Regulator at such time and place as may be specified in the notice under that paragraph to furnish any such explanation.

(1B) The Regulator may not require a person to answer any question or furnish any information which might incriminate the person or, if that person is married or a civil partner, the person's spouse or civil partner.”.

(3) In Article 69 (inspection of premises in respect of employers' obligations), before paragraph (1) insert—

“(A1) An inspector may, for the purposes of investigating whether an employer is contravening, or has contravened—

(a)any provision of, or of regulations under, Chapter 1 of Part 1, or section 50 or 54, of the Pensions (No. 2) Act (Northern Ireland) 2008, or

(b)any corresponding provision in force in Great Britain,

at any reasonable time enter premises liable to inspection.

(B1) Premises are liable to inspection for the purposes of paragraph (A1) if the inspector has reasonable grounds to believe that—

(a)the employer employs workers there,

(b)documents relevant to any of the following are being kept there—

(i)the administration of the employer's business,

(ii)the duties of the employer under Chapter 1 of Part 1 of the Pensions (No. 2) Act (Northern Ireland) 2008 or any corresponding provision in force in Great Britain,

(iii)the administration of a pension scheme that is relevant to the discharge of those duties, or

(c)the administration of the employer's business, or work connected with that administration, is being carried out there.

(C1) In paragraphs (A1) and (B1) “employer” and “worker” have the meaning given by section 70 of the Pensions (No. 2) Act (Northern Ireland) 2008.

(D1) In the application of paragraphs (A1) and (B1) in relation to any provision mentioned in paragraph (A1)(b) (a “corresponding GB provision”), references in those paragraphs to “employer” or “worker” are to be read as having the meaning that they have for the purposes of the corresponding GB provision.”.

(4) In Article 70(1) (inspection of premises: powers of inspectors), after “paragraph” (in the third place where it occurs) insert “ (A1), ”.

(5) In Article 71(9) (inspection of premises: supplementary), after “paragraph” (in the second place where it occurs) insert “ (A1), ”.

Commencement Information

I97S. 60 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Disclosure of tax information etc.N.I.

61—(1) In the 2005 Order, for Article 83 (tax information) substitute—

“Tax information etc.

83—(1) This Article applies to information held by the Revenue and Customs if it is held by them in connection with a function of the Revenue and Customs that relates to any of these matters—

(a)tax or duty;

(b)national insurance contributions;

(c)the national minimum wage.

(2) An officer of Revenue and Customs may disclose to the Regulator information to which this Article applies, if the disclosure is made for the purpose of enabling or assisting the Regulator to discharge its functions.

(3) Where information to which this Article applies is disclosed to the Regulator by virtue of paragraph (2) or section 19 of the Anti-terrorism, Crime and Security Act 2001 (disclosure of information held by revenue departments), it must, subject to paragraphs (4) and (5), be treated for the purposes of Article 77 as restricted information.

(4) Information to which this Article applies which is disclosed to the Regulator as mentioned in paragraph (3) may not be disclosed by the Regulator or any person who receives the information directly or indirectly from the Regulator except—

(a)to, or in accordance with authority given by, the Commissioners for Her Majesty's Revenue and Customs,

(b)with a view to the institution of, or otherwise for the purposes of, any criminal proceedings,

(c)with a view to the institution of any other proceedings by the Regulator, or for the purposes of any such proceedings instituted by the Regulator,

(d)in accordance with Article 79, otherwise than for the purposes of any proceedings, or

(e)in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.

(5) Accordingly Articles 77(3), 78 and 80 to 82, and section 235 of and paragraph 4 of Schedule 10 to, the Pensions Act 2004, do not apply to such information, and Article 79 applies subject to paragraph (4)(d).

(6) In paragraph (4)(c) and (d), “proceedings” includes the issue of notices or any other enforcement action taken by the Regulator under Chapter 2 of Part 1 of the Pensions (No. 2) Act (Northern Ireland) 2008 or any other provision.

(7) In this Article “the Revenue and Customs” and a “function of the Revenue and Customs” have the same meaning as in section 18 of the Commissioners for Revenue and Customs Act 2005 (confidentiality).”.

(2) In Article 77 of that Order (restricted information) in paragraph (3) for “83(4)” substitute “ 83(4)(d) ”.

Penalty for disclosureN.I.

62  In Article 77(5)(a) of the 2005 Order (penalty for disclosure of restricted information, on summary conviction) at the end add “ , or imprisonment for a term not exceeding six months, or both ”.

Objectives of the RegulatorN.I.

Objectives of the RegulatorN.I.

63  In Article 4(1) of the 2005 Order (Regulator's objectives), before “and” at the end of sub-paragraph (c) insert—

“(ca)to maximise compliance with the duties under Chapter 1 of Part 1 (and the safeguards in sections 50 and 54) of the Pensions (No. 2) Act (Northern Ireland) 2008,”.

Functions of the Pensions OmbudsmanN.I.

Functions of the Pensions OmbudsmanN.I.

64—(1) Section 142 of the Pension Schemes Act (functions of the Pensions Ombudsman) is amended as follows.

(2) In subsection (7), after paragraph (ba) insert—

“(bb)a person who has given notice in accordance with section 8 of the Pensions (No. 2) Act (Northern Ireland) 2008 (right to opt out of membership of an automatic enrolment scheme);”.

(3) In paragraph (c)(i) of that subsection, for “or (ba)” substitute “ , (ba) or (bb) ”.

Commencement Information

I98S. 64 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

CHAPTER 5N.I.PERSONAL ACCOUNTS DELIVERY AUTHORITY

FunctionsN.I.

Functions and winding upN.I.

65—(1) F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) If the Secretary of State makes an order containing provision under section 23(7) of the Pensions Act 2007 (c. 22), the Department may by order make corresponding provision in relation to Northern Ireland.

Textual Amendments

PrinciplesN.I.

66  F117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Directions and guidanceN.I.

67  F118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Disclosure of information by the RegulatorN.I.

68  F119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

CHAPTER 6N.I.STAKEHOLDER PENSION SCHEMES

Stakeholder pension schemesN.I.

69—(1) The Welfare Reform and Pensions (Northern Ireland) Order 1999 (NI 11) is amended as follows.

(2) Article 5 (duty of employers to facilitate access to stakeholder pension schemes) is amended as follows.

(3) In paragraph (1), for “the requirements set out below” substitute “ the requirement in paragraph (5) ”.

(4) After paragraph (1) insert—

“(1A) A relevant employee, in relation to an employer, is an employee of the employer who, on the relevant date, satisfies the conditions in paragraph (1B).

(1B) The conditions are that—

(a)the employee is a member of a stakeholder pension scheme;

(b)the employee made a request under paragraph (5) before the relevant date and that request has not been withdrawn;

(c)the employee pays contributions (which are deducted in accordance with that request) to the scheme at regular intervals;

(d)at least one deduction has been made before the relevant date in accordance with that request.

(1C) A person ceases to be a relevant employee—

(a)on ceasing to be employed by the employer;

(b)on withdrawing a request under paragraph (5);

(c)on ceasing to pay contributions at regular intervals.”.

(5) Omit paragraphs (2) to (4).

(6) In paragraph (5)—

(a)omit the word “fourth”;

(b)omit the words from “of his” to “qualifying scheme”;

(c)in sub-paragraph (a), for “scheme” substitute “ stakeholder pension scheme ”.

(7) After paragraph (5) insert—

“(5A) That requirement only applies in relation to a request to make deductions made before the relevant date (whether or not that request is varied after that date).”.

(8) Omit paragraph (6).

(9) In paragraph (7), for “any of the requirements” substitute “ the requirement ”.

(10) In paragraph (8)—

(a)for the words from “whether before” to “those purposes” substitute “ while subject to the requirement in paragraph (5) ”;

(b)omit sub-paragraph (a)(ii) and (iii).

(11) In paragraph (9), after the definition of “regulations” insert—

““relevant date” means the date on which section 69 of the Pensions (No. 2) Act (Northern Ireland) 2008 comes into operation.”.

(12) In that paragraph—

(a)omit the definition of “qualifying scheme”;

(b)omit the definition of “relevant employees”.

(13) In Article 8 (application of certain statutory provisions) omit paragraphs (1), (2) and (4).

(14) In Article 9 (interpretation), in paragraph (1), omit the definition of “designated scheme”.

Commencement Information

I99S. 69 in operation at 1.10.2012 by S.R. 2012/372, art. 2(a)

CHAPTER 7N.I.APPLICATION AND INTERPRETATION

[F120ExceptionsN.I.

Textual Amendments

F120S. 69A and preceding cross-heading inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 37(2), 53(1); S.R. 2015/307, art. 2(1)(c)

Power to create exceptions from the employer duties etc.N.I.

69A—(1) The Department may by regulations provide for exceptions tothe employer duties; and an exception may in particular—

(a)turn an employer duty into a power;

(b)be framed by reference to a description of worker, particular circumstances or in some other way.

(2) But the regulations may not provide for an exception for employers of a particular size.

(3) Regulations which make provision under subsection (1)(a) may make provision modifying this Part or regulations made under it in connection with that provision.

(4) The regulations may make provision in connection with the coming to an end of the state of affairs that caused an exception to apply, including provision—

(a)modifying this Part or regulations made under it in relation to a person;

(b)for the purpose of putting a person, wholly or partly, in the position he or she would have been in if the exception had never applied.

(5) In this section “employer duties” means any duty of an employer under any provision of sections 2 to 11 and 54 or of regulations made under those sections.]

WorkersN.I.

“Employer”, “worker” and related expressionsN.I.

70—(1) This section applies for the purposes of this Part.

(2) “Contract of employment” means a contract of service or apprenticeship whether express or implied, and (if it is express) whether oral or in writing.

(3) “Worker” means an individual who has entered into or works under—

(a)a contract of employment, or

(b)any other contract by which the individual undertakes to do work or perform services personally for another party to the contract.

(4) But a contract is not within subsection (3)(b) if the status of the other party is by virtue of the contract that of a client or customer of a profession or business undertaking carried on by the individual concerned.

(5) For the purposes of subsection (3)(b), it does not matter whether the contract is express or implied or (if it is express) whether it is oral or in writing.

(6) Any reference to a worker's contract is to be read in accordance with subsections (3) to (5).

(7) “Employer”, in relation to a worker, means the person by whom the worker is employed (subject to sections 37(5) and 38(6)).

(8) “Employment” in relation to a worker, means employment under the worker's contract.

Commencement Information

I100S. 70 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Agency workersN.I.

71—(1) This section applies to an individual (“the agency worker”)—

(a)who is supplied by a person (“the agent”) to do work for another person (“the principal”) under a contract or other arrangements made between the agent and the principal,

(b)who is not, as respects that work, a worker, because of the absence of a worker's contract between the individual and the agent or the principal, and

(c)who is not a party to a contract under which the agency worker undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of a profession or business undertaking carried on by the individual.

(2) Where this section applies, the other provisions of this Part have effect—

(a)as if there were a worker's contract for the doing of the work by the agency worker, made between the agency worker and the relevant person under subsection (3), and

(b)as if that person were the agency worker's employer.

(3) The relevant person is—

(a)whichever of the agent and the principal is responsible for paying the agency worker in respect of the work, or

(b)if neither the agent nor the principal is responsible for doing so, whichever of them pays the agency worker in respect of the work.

Modifications etc. (not altering text)

C30S. 71 applied by 1993 c. 49, s. 119(2A) (as inserted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 41(2)(c), 53(1); S.R. 2015/307, art. 2(1)(f))

Commencement Information

I101S. 71 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

DirectorsN.I.

72—(1) A person who holds office as a director of a company is not, by virtue of that office or of any employment by the company, a worker for the purposes of this Part, unless—

(a)the person is employed by the company under a contract of employment, and

(b)there is at least one other person who is employed by the company under a contract of employment.

(2) In this section, “company” includes any body corporate.

Commencement Information

I102S. 72 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Crown employmentN.I.

73—(1) This Part has effect in relation to employment by or under the Crown as it has effect in relation to other employment.

(2) For the purposes of the application of the provisions of this Part in accordance with subsection (1)—

(a)references to a worker are to be construed as references to a person employed by or under the Crown;

(b)references to a worker's contract are to be construed as references to the terms of employment of a person employed by or under the Crown.

(3) This section does not impose criminal liability on the Crown.

(4) But on the application of the Regulator the High Court may declare unlawful a failure by the Crown to comply with any of the duties mentioned in section 45(1).

Commencement Information

I103S. 73 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Armed forcesN.I.

74—(1) A person serving as a member of the naval, military or air forces of the Crown is not, by virtue of that service, a worker for the purposes of this Part.

(2) A member of any of the forces specified in subsection (3) who assists the activities of any of those forces is not, by virtue of anything done in assisting those activities, a worker for the purposes of this Part.

(3) The forces are—

(a)the Combined Cadet Force;

(b)the Sea Cadet Corps;

(c)the Army Cadet Force;

(d)the Air Training Corps.

Commencement Information

I104S. 74 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

PoliceN.I.

75  This Part has effect in relation to a person who—

(a)(subject to such exceptions as may be prescribed), holds the office of constable as a police officer or an appointment as a police trainee or police reserve trainee under section 39 or 40 of the Police (Northern Ireland) Act 2000 (c. 32) or as a police cadet under section 42 of that Act, and

(b)does not hold that office or appointment under a contract of employment,

as if the person were employed by the Chief Constable under a worker's contract.

Commencement Information

I105S. 75 partly in force; s. 75 in force for certain purposes at Royal Assent see s. 118(2)

I106S. 75 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Persons working on vesselsN.I.

76—(1) Subject to regulations under section 96 of the Pensions Act 2008 (c. 30), a person employed or engaged in any capacity on board a ship is not, by virtue of that employment or engagement, a worker for the purposes of this Part.

(2) In this section, “ship” includes—

(a)a hovercraft within the meaning of the Hovercraft Act 1968 (c. 59), and

(b)every description of vessel used in navigation.

Commencement Information

I107S. 76 in operation at 30.6.2012 by S.R. 2012/266, art. 2, Sch. Pt. 2

Extension of definition of workerN.I.

77  The Department may by regulations make provision for this Part to apply with or without modifications—

(a)as if any individual of a prescribed description (who would not otherwise be a worker) were a worker,

(b)as if there were in the case of any such individual a worker's contract of a prescribed description under which the individual works, and

(c)as if a person of a prescribed description were the employer under that contract.

Commencement Information

I108S. 77 partly in force; s. 77 in force for certain purposes at Royal Assent see s. 118(2)

GeneralN.I.

Interpretation of PartN.I.

78  In this Part—

Textual Amendments

F121Words in s. 78 inserted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 4 para. 6(2)

F123Words in s. 78 substituted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 4 para. 6(3)(a)

F124Words in s. 78 substituted (retrospectively) by Pensions Act (Northern Ireland) 2012 (c. 3), ss. 27(3)(6), 34(3); S.R. 2014/203, art. 2

F125Words in s. 78 inserted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 4 para. 6(3)(b)

Commencement Information

I109S. 78 wholly in operation at 5.7.2010; s. 78 in operation for certain purposes at Royal Assent see s. 118(2); s. 78 in operation at 5.7.2010 in so far as not already in operation by S.R. 2010/50, art. 2(2)

[F126Money purchase benefits: supplementaryN.I.

78A—(1) This section applies for the purposes of [F127paragraph (a) of the definition] of “money purchase benefits” in section 78.

(2) A benefit other than a pension in payment falls within this section if its rate or amount is calculated solely by reference to assets which (because of the nature of the calculation) must necessarily suffice for the purpose of its provision to or in respect of the member.

(3) A benefit which is a pension in payment falls within this section if—

(a)its provision to or in respect of the member is secured by an annuity contract or insurance policy made or taken out with an insurer, and

(b)at all times before coming into payment the pension was a benefit falling within this section by virtue of subsection (2).

(4) For the purposes of subsection (2) it is immaterial if the calculation of the rate or amount of the benefit includes deductions for administrative expenses or commission.

(5) In this section references to a pension do not include income withdrawal or dependants' income withdrawal (within the meaning of paragraphs 7 and 21 of Schedule 28 to the Finance Act 2004).]

Textual Amendments

F127Words in s. 78A(1) substituted (11.2.2021 for specified purposes) by Pension Schemes Act 2021 (c. 1), s. 131(2)(a)(3)(a), Sch. 4 para. 7