Pension Schemes Act 1993

123 Interpretation of Chapter II. E+W+S

(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 [F1 made] 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 M1 Insolvency Act 1986; or

(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 I of the M1 Insolvency 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 M2 Judicial 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 F4 ... is made or a resolution for voluntary winding up is passed with respect to it [F5 or 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 M1 Insolvency Act 1986 is approved under that Part.

(3) In this Chapter—

• [F6 “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—

  (a)

  pay in respect of holiday actually taken; or

  (b)

  any accrued holiday pay which under [F7 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;

• F8 ...

[F9 (3A) 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.]

F10 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Textual Amendments

F1 Word in s. 123(1)(a) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 18

F2 Words in s. 123(1)(c)(i) omitted (15.9.2003) by virtue of The Enterprise Act 2002 (Insolvency) Order 2003 (S.I. 2003/2096), art. 1(1), Sch. para. 22(a)(i) (with art. 6)

F3 Words in s. 123(1)(c)(i) added (15.9.2003) by The Enterprise Act 2002 (Insolvency) Order 2003 (S.I. 2003/2096), art. 1(1), Sch. para. 22(a)(ii) (with art. 6)

F4 Words in s. 123(2)(c)(i) omitted (15.9.2003) by virtue of The Enterprise Act 2002 (Insolvency) Order 2003 (S.I. 2003/2096), art. 1(1), Sch. para. 22(b)(i) (with art. 6)

F5 Words in s. 123(2)(c)(i) added (15.9.2003) by The Enterprise Act 2002 (Insolvency) Order 2003 (S.I. 2003/2096), art. 1(1), Sch. para. 22(b)(ii) (with art. 6)

F6 Words in s. 123(3) substituted (11.9.2014) by Pensions Act 2014 (c. 19), ss. 42(2)(a), 56(1); S.I. 2014/2377, art. 2(1)(a)(i)(2)(e)

F7 Words in s. 123(3) substituted (11.9.2014) by Pensions Act 2014 (c. 19), ss. 42(2)(b), 56(1); S.I. 2014/2377, art. 2(1)(a)(i)(2)(e)

F8 Words in s. 123(3) repealed (22.9.2005) by Pensions Act 2004 (c. 35), s. 322(1), Sch. 12 para. 19(a), Sch. 13; S.I. 2005/2447, art. 2(3)

F9 S. 123(3A)(3B) inserted (11.9.2014) by Pensions Act 2014 (c. 19), ss. 42(2)(c), 56(1); S.I. 2014/2377, art. 2(1)(a)(i)(2)(e)

F10 S. 123(4) repealed (22.9.2005) by Pensions Act 2004 (c. 35), s. 322(1), Sch. 12 para. 19(b), Sch. 13; S.I. 2005/2447, art. 2(3)

Modifications etc. (not altering text)

C1 S. 123 applied (6.4.1997) by Pensions Act 1995 (c. 26), ss. 81(8), 180(1) (with s. 121(5)); S.I. 1997/664, art. 2(3), Sch. Pt. 2

Commencement Information

I1 Ss. 1-187 in force at 7.2.1994 by S.I. 1994/86, art. 2

Marginal Citations

M1 1986 c. 45.

M2 1889 c. 39.