(1) Regulations may make provision about the imposition by the Regulatory Authority of a penalty on the trustees or managers of a relevant Master Trust or the provider of a group personal pension scheme where the scheme—
(a) fails to meet the condition in section 20(1A) by virtue of not being approved under section 28A or 28C, and
(b) accepts contributions from an employer in relation to a jobholder on the basis that it is an automatic enrolment scheme in relation to that jobholder.
(2) Regulations may make provision about the imposition by the Regulatory Authority of a penalty on the provider of a group personal pension scheme where the scheme—
(a) fails to meet the condition in section 26(7A) or (7B), and
(b) accepts contributions from an employer in relation to a jobholder on the basis that it is an automatic enrolment scheme in relation to that jobholder.
(3) The regulations must provide—
(a) that a penalty must not exceed £100,000 in relation to each employer from which contributions are accepted as mentioned in subsection (1)(b) or (2)(b), and
(b) that there is a right of appeal against the imposition of the penalty.
28J Enforcement by the Financial Conduct Authority
(1) The Treasury may make regulations to enable the Financial Conduct Authority to take action (in addition to any action it may otherwise take under the Financial Services and Markets Act 2000) for monitoring and enforcing compliance of any FCA-regulated person with any provision of or under this Chapter.
(2) The regulations may apply, or make provision corresponding to—
(a) provision made by or under this Part in relation to the Regulatory Authority, or
(b) any provision of the Financial Services and Markets Act 2000,
with or without modification.
(3) In this section, “FCA-regulated person” means an authorised person (within the meaning of the Financial Services and Markets Act 2000).
28K Report about effects of pension scheme consolidation
(1) The Secretary of State must prepare and publish a report about the effects of consolidation on innovation in the design and operation of relevant Master Trusts and group personal pension schemes.
(2) The report may in particular include information about—
(a) the extent to which consolidated schemes adopt or maintain innovative product designs of constituent schemes;
(b) barriers to consolidated schemes adopting or maintaining such innovative product designs.
(3) The Pensions Regulator and the FCA must provide such information and assistance as the Secretary of State may require for the purposes of the report.
(4) The report under this section must be published before the end of the period of 12 months beginning with the day on which this section comes into force.
(5) In this section “consolidation” means the consolidation of a relevant Master Trust or group personal pension scheme with one or more other schemes.
In making regulations under section 20(1A) or (1C), 26(7A), 28A, 28B, 28E or 28F, the Secretary of State must have regard to the importance of—
(a) innovation in the design and operation of relevant Master Trusts and group personal pension schemes;
(b) competition among relevant Master Trusts and group personal pension schemes;
(c) improving outcomes for members of relevant Master Trusts and group personal pension schemes;
(d) relevant Master Trusts and group personal pension schemes achieving an appropriate scale;
(e) relevant Master Trusts and group personal pension schemes having effective governance.
29 Transitional periods for money purchase and personal pension schemes
(1) During the first transitional period ...—
(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 force of section 20.
(3) During the second transitional period ...—
(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.
30 Transitional period for defined benefits and hybrid schemes
(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 a 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 a 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) If 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
(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, or
(b) a defined benefits member, with effect from the end of that period, of an automatic enrolment scheme which is a hybrid scheme. A reference in this subsection to a scheme does not include a scheme to which section 30(11)(a) or (b) applies.
(4) If a 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) of this section 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 other than a scheme to which section 30(11)(a) applies,
(aa) becomes a defined benefits member, with effect from the closure date, of an automatic enrolment scheme which is a hybrid scheme, other 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 or personal pension scheme.
(c) becomes a money purchase member, with effect from the automatic enrolment date, of an automatic enrolment scheme which is a hybrid scheme,
(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)(a) 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 . . . 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) of this section applies—
(a) section 3(3) and (4) apply as if references to the automatic enrolment date 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;
(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 workers'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.
(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.
(7A) The Secretary of State 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 force.
(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).
(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.
(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).
30A Review of exercise of powers under section 28C
(1) The Secretary of State must—
(a) review the effects of any regulations under section 28C (approvals in respect of asset allocation), and
(b) prepare, publish and lay before Parliament, a report of the review.
(2) A review under subsection (1) must be conducted before the end of the period of 5 years beginning with the day on which the regulations in question come into force.
(3) In carrying out the review the Secretary of State must take the following into account—
(a) whether and how the financial interests of members of Master Trust schemes and savers in group personal pension schemes have been affected by the regulations;
(b) the effects (if any) of the measures on economic growth in the United Kingdom;
(c) any other matters the Secretary of State considers appropriate.
31 Effect of freezing order , assessment period or pause order
(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—
the making of a freezing order under section 23 of the Pensions Act 2004 (c. 35) in relation to the scheme, ...
the beginning of an assessment period within the meaning of section 132 of that Act in relation to the scheme, ...
the making of a pause order under section 31 of the Pension Schemes Act 2017, or
the making of a pause order under section 44 of the Pension Schemes Act 2021;
“relevant provision” means—
in relation to a freezing order, provision contained in the order, or the provision made with respect to the order by section 23 of the Pensions Act 2004;
in relation to an assessment period, the provision made with respect to the period by section 133 of that Act.
in relation to a pause order, provision contained in the order or the provision made with respect to the order by section 31 of the Pension Schemes Act 2017 or (as the case may be) section 44 of the Pension Schemes Act 2021.
32 Power of trustees or managers to modify by resolution
(1) The trustees or 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 to 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.
(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.
(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 11A or of regulations under those sections.
(1) The Regulator may issue a compliance notice to a person if the Regulator 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.
(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.
(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.
(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 Secretary of State 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.
(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.
(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, ...
(d) a notice issued under section 72 of the Pensions Act 2004 (c. 35) (provision of information), so far as relevant to the exercise of any of its functions under or by virtue of this Part , or
(e) a notice issued under section 72A of that Act (interviews), 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 60 (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 4 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 a tribunal under section 44.
(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, ...
(d) a notice under section 72 of the Pensions Act 2004 (c. 35) (provision of information), so far as relevant to the exercise of any of its functions under or by virtue of this Part , or
(e) a notice issued under section 72A of that Act (interviews), 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 a 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 a tribunal under section 44.
(1) Any penalty payable under section 40 or section 41 is recoverable by the Regulator.
(2) In England and Wales, any such penalty is, if the county court so orders, recoverable under section 85 of the County Courts Act 1984 (c. 28) or otherwise as if it were payable under an order of that court.
(3) In Scotland, a fixed penalty notice or escalating penalty notice is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(4) The Regulator must pay into the Consolidated Fund any penalty recovered under this section.
(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.
44 References to First-tier Tribunal or Upper Tribunal
(1) A person to whom a notice is issued under section 40 or 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to the 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 the 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.
(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.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
(1) Subsection (2) applies where an offence under section 45 committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body corporate, or
(b) to be attributable to any neglect on the part of an officer of the body corporate.
(2) The officer, as well as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.
(3) “Officer” in this section means—
(a) a director, manager, secretary or other similar officer, or
(b) a person purporting to act in such a capacity.
(4) Where the affairs of a body corporate are managed by its members, this section 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 an officer of the body corporate.
47 Offences by partnerships and unincorporated associations
(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) the following provisions apply in relation to the partnership or association as they apply in relation to a body corporate—
(i) section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43);
(ii) section 70 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
(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.
48 Offences of providing false or misleading information
In section 80(1)(a) of the Pensions Act 2004 (c. 35) (offences of providing false or misleading information)—
(a) at the end of sub-paragraph (iv) insert
or
“(v) regulations under section 11 of the Pensions Act 2008,
;
(b) omit “or” at the end of sub-paragraph (iii).
49 Monitoring of employers' payments to personal pension schemes
In section 111A of the Pension Schemes Act 1993 (c. 48) (monitoring of employers' payments to personal pension schemes), at the end insert—
(18) In this section, “employee” includes a jobholder within the meaning of section 1 of the Pensions Act 2008 and “employer” is to be read accordingly.
(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.
(1) The Regulator may issue a compliance notice to an employer if the Regulator 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.
(1) The Regulator may issue a penalty notice to an employer if the Regulator 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 4 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.
53 Review of notices and references to First-tier Tribunal or Upper Tribunal
(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 First-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.
(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 with 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 with 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.
(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 of this Part 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 of this Part.
(4) This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10 of the Employment Rights Act 1996 (c. 18) (unfair dismissal).
(5) In this section references to enforcing a requirement include references to securing its benefit in any way.
(1) A worker may present a complaint to an employment 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 sections 48(2) to (4A) and 49 of the Employment Rights Act 1996(complaints to employment tribunals and remedies), apply in relation to a complaint under this section as they apply in relation to a complaint under section 48 of that Act, 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 section 49 of the Employment Rights Act 1996 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 section 119 of the Employment Rights Act 1996, if the worker had been an employee within the meaning of that Act and the contract terminated had been a contract of employment, and
(b) the sum for the time being specified in section 124(1) of that Act which is the limit for a compensatory award to a person calculated in accordance with section 123 of that Act.
(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 Act 1996, 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 section 230(3)(b) of that Act.
(6) In section 18(1) of the Employment Tribunals Act 1996 (c. 17) (proceedings where conciliation is available), after paragraph (u) insert
, or
(v) under section 56 of the Pensions Act 2008.
(1) The Employment Rights Act 1996 (c. 18) is amended as follows.
(2) After section 104C (flexible working) insert—
Pension enrolment
104D (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 section applies;
(b) the employer was prosecuted for an offence under section 45 of the Pensions Act 2008 as a result of action taken for the purpose of enforcing in favour of the employee a requirement to which this section 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 paragraph (a) or (b) of subsection (1) above—
(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 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 of Part 1 of the Pensions Act 2008.
(4) In this section references to enforcing a requirement include references to securing its benefit in any way.
(3) In section 105 (redundancy as unfair dismissal), in subsection (1)(c) (which refers to any of subsections (2A) to (7J) of that section applying) for “(7J)” substitute “ (7JA) ”.
(4) After subsection (7J) of that section insert—
(7JA) This subsection 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 subsection (1) of section 104D (read with subsection (2) of that section).
(5) In section 108 (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period is required) after paragraph (gi) insert—
(gj) subsection (1) of section 104D (read with subsection (2) of that section) applies,
.
(6) In section 237(1A) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (cases where employee may complain of unfair dismissal despite participation in unofficial industrial action), in paragraph (a)—
(a) for “, 103A or 104C” substitute “ , 103A, 104C or 104D ”;
(b) for “protected disclosure and flexible working” substitute “ protected disclosure, flexible working and pension scheme membership ”.
(7) In section 238(2A)(a) of that Act (cases where employment tribunal to determine whether dismissal of an employee is unfair despite limitation in subsection (2) of that section)—
(a) for “, 103 or 104C” substitute “ , 103, 104C or 104D ”;
(b) for “, employee representative and flexible working” substitute “ , employee representative, flexible working and pension scheme membership ”.
58 Restrictions on agreements to limit operation of this Part
(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 employment 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 any of sections 18A to 18C of the Employment Tribunals Act 1996 (c. 17) (conciliation).
(4) Subsection (1) does not apply to any agreement to refrain from instituting or continuing before an employment tribunal any proceedings within section 18(1)(v) of the Employment Tribunals Act 1996 (proceedings under this Act where conciliation is available) if the conditions regulating settlement agreements under this Act are satisfied in relation to the agreement.
(5) For the purposes of subsection (4) the conditions regulating settlement 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 employment 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 settlement 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 Secretary of State.
(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) as respects England and Wales—
(i) a barrister (whether in practice as such or employed to give legal advice),
(ii) a solicitor who holds a practising certificate, or
(iii) a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990);
(b) as respects Scotland—
(i) an advocate (whether in practice as such or employed to give legal advice), or
(ii) 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.
In section 21(1) of the Employment Tribunals Act 1996 (c. 17) (jurisdiction of appeal tribunal), after paragraph (gc) insert—
(gd) the Pensions Act 2008,
.
(1) For the purposes of Chapter 1 or 2 of this Part, the Secretary of State 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 to the Regulator on receiving a notification requesting them.
(2) Regulations under subsection (1) may provide that section 10 of the Pensions Act 1995 (c. 26) (civil penalties) applies to a person who fails to comply with those requirements.
61 Powers to require information and to enter premises
(1) The Pensions Act 2004 (c. 35) is amended as follows.
(2) In section 72, after subsection (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 Act 2008 or section 51 of that Act, the Regulator may, by notice in writing, require a person to whom subsection (2) applies—
(a) to furnish the Regulator with an explanation of any document or information required under subsection (1);
(b) to attend before the Regulator at such time and place as may be specified in the notice under that subsection 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 section 74, before subsection (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 Act 2008, or
(b) any corresponding provision in force in Northern Ireland,
at any reasonable time enter premises liable to inspection.
(B1) Premises are liable to inspection for the purposes of subsection (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 Act 2008 or under any corresponding provision in force in Northern Ireland,
(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 subsections (A1) and (B1) “employer” and “worker” have the meaning given by section 88 of the Pensions Act 2008.
(D1) In the application of subsections (A1) and (B1) in relation to any provision mentioned in subsection (A1)(b) (a “corresponding Northern Ireland provision”), references in those subsections to “employer” or “worker” are to be read as having the meaning that they have for the purposes of the corresponding Northern Ireland provision.
(4) In section 75(1), after “subsection” (in the third place where it occurs) insert “ (A1), ”.
(5) In section 76(9), after “subsection” (in the second place where it occurs) insert “ (A1), ”.
(1) In the Pensions Act 2004 (c. 35), for section 88 (tax information) substitute—
Tax information etc
88 (1) This section 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 section 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 section applies is disclosed to the Regulator by virtue of subsection (2) above or section 19 of the Anti-terrorism, Crime and Security Act 2001 (disclosure of information held by revenue departments), it must, subject to subsections (4) and (5), be treated for the purposes of section 82 as restricted information.
(4) Information to which this section applies which is disclosed to the Regulator as mentioned in subsection (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 section 84, 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 sections 82(3), 83, 85 to 87 and 235, and paragraph 4 of Schedule 10, do not apply to such information, and section 84 applies subject to subsection (4)(d).
(6) In subsection (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 Act 2008 or any other enactment.
(7) In this section “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 section 82 of that Act (restricted information), in subsection (3) for “88(4)” substitute “ 88(5) ”.
63 Information for private pensions policy and retirement planning
(1) In Schedule 10 to the Pensions Act 2004 (c. 35) (use and supply of information for purposes relating to private pensions policy and retirement planning), after paragraph 3 insert—
Supply of information held by the Regulator
4 (1) This paragraph applies to information which is held—
(a) by the Regulator;
(b) by a person providing services to the Regulator, in connection with the provision of those services.
(2) Information to which this paragraph applies may be supplied—
(a) to the Secretary of State or the Northern Ireland Department, or
(b) to a person providing services to the Secretary of State or the Northern Ireland Department,
for use for the purposes of functions relating to private pensions policy or retirement planning.
(3) In this paragraph—
“private pensions policy” means policy relating to schemes which are occupational pension schemes or personal pension schemes within the meaning of Part 1 of the Pensions Act 2008;
“retirement planning” and “the Northern Ireland Department” have the same meaning as in paragraph 2.
(2) Section 323 of the Pensions Act 2004 (extent) is amended as follows.
(3) In subsection (2)(c) (provisions extending to Northern Ireland)—
(a) for “paragraph 2” substitute “ paragraphs 2 and 4 ”;
(b) for “that paragraph” substitute “ those paragraphs ”.
(4) In subsection (4), for “paragraph 2” substitute “ paragraphs 2 and 4 ”.
(5) Section 3 of the Social Security Act 1998 (c. 14) (use of information) is amended as follows.
(6) In subsection (5), in the definition of “private pensions policy”—
(a) the words from “occupational” to the end become paragraph (a), and
(b) after that paragraph insert
or
(b) occupational pension schemes or private pension schemes within the meaning of Part 1 of the Pensions Act 2008, if they do not fall within paragraph (a);
.