Part VII Insolvency of employers

Chapter II Payment by Secretary of State of unpaid scheme contributions

I1C1123 Interpretation of Chapter II.

1

For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in England and Wales—

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 section 421 of the M1Insolvency Act 1986; or

c

where the employer is a company—

i

a winding-up order F1... is made or a resolution for voluntary winding up is passed with respect to it F2or 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 I of the M1Insolvency Act 1986 is approved under that Part.

2

For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in Scotland—

a

sequestration of his estate is awarded or he executes a trust deed for his creditors or enters into a composition contract;

b

he has died and a judicial factor appointed under section 11A of the M2Judicial Factors (Scotland) Act 1889 is required by that section to divide his insolvent estate among his creditors; or

c

where the employer is a company—

i

a winding-up order F3... is made or a resolution for voluntary winding up is passed with respect to it F4or the company enters administration,

ii

a receiver of its undertaking is duly appointed, or

iii

a voluntary arrangement proposed for the purpose of Part I of the M1Insolvency Act 1986 is approved under that Part.

3

In this Chapter—

  • F7“employer”, “employment”, “worker” and “worker's contract” and other expressions which are defined in the Employment Rights Act 1996 have the same meaning as in that Act (see further subsections (3A) and (3B));

  • “holiday pay” means—

    1. a

      pay in respect of holiday actually taken; or

    2. b

      any accrued holiday pay which under F8the 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;

  • F5...

F93A

Section 89 of the Pensions Act 2008 (agency workers) applies for the purposes of this Chapter as it applies for the purposes of Part 1 of that Act.

3B

References in this Chapter to a worker include references to an individual to whom Part 1 of the Pensions Act 2008 applies as if the individual were a worker because of regulations made under section 98 of that Act; and related expressions are to be read accordingly.

F64

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5

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.