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When one business buys another, the staff
in the business being bought are treated
within the scope of legislation called the
Transfer of Undertakings (Protection of
Employment) Regulations 1981 (TUPE).
TUPE requires that employers acquiring businesses
do the following to protect the staff at
the time of transfer:
-
Take on all existing
staff and maintain their continuity of
service
-
Do not make any changes
to contracts of employment that are in
any way worse for staff
-
Inform and consult
representatives of the affected staff
The one exception to contractual entitlements
currently is the requirement to transfer
occupational pension entitlements. Neither
is there any legal requirement on the new
employer to provide replacement pension
provision. In some cases, occupational pension
schemes provide far more than an income
following retirement. They also venture
into provision for ill health retirement,
for survivors’ benefits and for lump
sum payments in the event of death in service.
So, under TUPE, employees are not legally
entitled to benefits such as these being
continued with a new employer, following
a TUPE transfer.
However, on 15th March 2005, the government
passed regulations enhancing pension protection
under TUPE, which took effect on 6th April
2005. (The Pensions Act 2004 and the Transfer
of Employment (Pension Protection) Regulations
2005). It also issued another public consultation
document on revising the rest of TUPE. This
new legislation seeks to protect staff who
have previously enjoyed occupational pension
arrangements prior to a TUPE transfer. For
such staff, certain pension provisions must
now be made by the new employer once staff
have transferred to their employment. This
could affect the cost of business acquisitions
in the future and is worth considering in
relation to the effect on long term business
costs and the working life of staff being
transferred, before a business is acquired.
The following staff would qualify for this
new pension provision under TUPE:
-
Staff who were, before
the business transferred, active members
of an occupational pension scheme
-
Staff who were eligible
to become a member of an occupational
pension scheme but had not joined the
scheme
-
Staff who were, before
the business transferred, eligible to
be active members of an occupational pension
scheme, had they been employed for a longer
period
A member of staff will
NOT qualify for protection under the Regulations
unless the employer transferring the business
already made, or was required to make, contributions
for him. The new Regulations require that
transferring staff have a contractual entitlement
to become a member of the new employer’s
occupational pension scheme. Alternatively,
they must be able to make relevant contributions
towards a stakeholder pension scheme of which
the new employer is a member.
The new employer may wish to reduce pension
provision following a transfer (rather than
at the time of transfer) but is still obliged
to match the employee’s contribution
to a stakeholder scheme up to a maximum of
6% of salary. For the purposes of calculation,
salary would be defined as the basic rate
of pay and would exclude bonuses, commission
or overtime etc. This requirement commences
with immediate effect on the date of transfer,
or the date at which the member of staff would
have been eligible to join the pension scheme
had they remained with the original employer.
Essentially, the benefits offered in the new
employer’s scheme must be at least equal
to the value of benefits offered by the transferring
employer at the time of transfer.
As this piece of legislation makes the pension
benefit a contractual entitlement, there may
be some occasions when staff transferring
to a new employer are in a better position
than existing staff of the same employer,
who might not be entitled contractually to
access the same level of benefit. This again
may be worth considering at the time of acquisition.
Harmonisation of terms and conditions will
now have another facet which will have to
be considered.
For some organisations, this legislation will
not affect the decision to acquire new businesses,
but for others the long term effect of pension
provision may be the deciding factor in a
long list of pros and cons.

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