Pension Schemes (Northern Ireland) Act 1993

119 Interpretation of Chapter II. N.I.

(1) For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in Northern Ireland—

(a) he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

(b) he has died and his estate falls to be administered in accordance with an order under Article 365 of the Insolvency (Northern Ireland) Order 1989; F1 ...

(c) where the employer is a company—

(i) a winding-up order F2 ... is made or a resolution for voluntary winding up is passed with respect to it [F3 or the company enters administration],

(ii) a receiver or manager of its undertaking is duly appointed,

(iii) possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or

(iv) a voluntary arrangement proposed for the purpose of Part II of the M1 Insolvency (Northern Ireland) Order 1989 is approved under that Part [F4 ; or

(d) subsection [F5 (1ZA) or (1A)] is satisfied].

[F6 (1ZA) This subsection is satisfied in the case of an employer if—

(a) the employer is a legal person,

(b) a request has been made for the first opening of collective proceedings—

(i) based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and

(ii) involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and

(c) any of the following has decided to open the proceedings—

(i) a court,

(ii) a meeting of creditors, or

(iii) the creditors by a decision procedure.]

[F7 (1A) This subsection is satisfied if—

(a) a request has been made for the first opening of collective proceedings—

(i) based on the insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a member State; and

(ii) involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task; and

(b) the competent authority has—

(i) decided to open the proceedings; or

(ii) established that the employer’s undertaking or business has been definitively closed down and the available assets of the employer are insufficient to warrant the opening of the proceedings.

(1B) For the purposes of [F8 this section]—

(a) “liquidator or person performing a similar task” includes the official receiver or an administrator, trustee in bankruptcy, judicial factor, supervisor of a voluntary arrangement, or person performing a similar task;

(b) “competent authority” includes—

(i) a court,

(ii) a meeting of creditors,

(iii) a creditors’ committee,

(iv) the creditors by a decision procedure, and

(v) an authority of a member State empowered to open insolvency proceedings, to confirm the opening of such proceedings or to take decisions in the course of such proceedings.

(1C) An application under section 120 may only be made in respect of a worker who worked or habitually worked in Northern Ireland in that employment to which the application relates.]

(2) In this Chapter—

• [F9 “employer”, “employment”, “worker” and “worker's contract” and other expressions which are defined in the Employment Rights (Northern Ireland) Order 1996 have the same meaning as in that Order (see further subsections (2A) and (2B));]

• “holiday pay” means—

  (a)

  pay in respect of a holiday actually taken; or

  (b)

  any accrued holiday pay which under [F10 the worker's contract] would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday;

• F11 ...

[F12 (2A) Section 71 of the Pensions (No. 2) Act (Northern Ireland) 2008 (agency workers) applies for the purposes of this Chapter as it applies for the purposes of Part 1 of that Act.

(2B) References in this Chapter to a worker include references to an individual to whom Part 1 of the Pensions (No. 2) Act (Northern Ireland) 2008 applies as if the individual were a worker because of regulations made under section 77 of that Act; and related expressions are to be read accordingly.]

F13 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Any reference in this Chapter to the resources of a scheme is a reference to the funds out of which the benefits provided by the scheme are from time to time payable.

Textual Amendments

F1 Word in s. 119(1)(b) omitted (31.1.2019) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(2), Sch. para. 256(2)(a)(i) (with regs. 4, 5)

F2 Words in s. 119(1)(c)(i) repealed (27.3.2006) by The Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455), art. 1(3), Sch. 2 para. 53(a), Sch. 9; S.R. 2006/21, art. 2 (subject to S.R. 2006/22, arts. 2-7)

F3 Words in s. 119(1)(c)(i) added (27.3.2006) by The Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455), art. 1(3), Sch. 2 para. 53(b); S.R. 2006/21, art. 2 (subject to S.R. 2006/22, arts. 2-7)

F4 S. 119(1)(d) and word inserted (31.1.2019) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(2), Sch. para. 256(2)(a)(ii) (with regs. 4, 5)

F5 Words in s. 119(1)(d) substituted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 258(2)(a) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)

F6 S. 119(1ZA) inserted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 258(2)(b) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)

F7 S. 119(1A)-(1C) inserted (31.1.2019) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(2), Sch. para. 256(2)(b) (with regs. 4, 5)

F8 Words in s. 119(1B) substituted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 258(2)(c) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in s. 119(2) substituted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 41(2)(a), 53(1); S.R. 2015/307, art. 2(1)(f)

F10 Words in s. 119(2)(b) substituted (16.7.2015) by Pensions Act (Northern Ireland) 2015 (c. 5), ss. 41(2)(b), 53(1); S.R. 2015/307, art. 2(1)(f)

F11 Words in s. 119(2) repealed (22.9.2005) by The Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), art. 1(2), Sch. 10 para. 15(a), Sch. 11; S.R. 2005/411, art. 2(3)

F12 S. 119(2A)(3B) 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)

F13 S. 119(3) repealed (22.9.2005) by The Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), art. 1(2), Sch. 10 para. 15(b), Sch. 11; S.R. 2005/411, art. 2(3)

Modifications etc. (not altering text)

C1 S. 119 applied (6.4.1997) by S.I. 1995/3213 (N.I. 22), art. 79(8) (with art. 118(5)(6)); S.R. 1997/192, art. 2(b)

Marginal Citations

M1 S.I. 1989/2405 (N.I. 19).