Personally I would be concerned about important paperwork, old employee handbooks etc. just "disappearing" if the OP does too much DIY investigation rather than using a solicitor. If it was me I think I would have gone straight to a solicitor specialising in employment law, rather than giving the company too much opportunity to make stuff go "off-site" for a while at least. The smaller the local operation the higher the risk of this IMO, especially if any management from 2007 are still around. But I appreciate everyone will handle things differently.
Made redundant after 15 yrs. Just discovered I was not in pension, but I thought I was
- Thread starter anbodearg
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anbodearg
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I think you are right. I've approached my solicitor to ask his advice, but haven't heard back yet.
Brendan suggested to give Company chance to resolve this issue first before legal, so I'm going to do that.
I've just submitted questions for clarification re: opt-out, etc.
Answer was 'no' to all of the questions.
'tough luck' basically.
I will try the legal route now
anbodearg
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They are not accepting any error on their part.
I didn't opt-in, therefore I wasn't in.
It is just my 'interpretation' that according to my contract, I should have been in the pension scheme.
Thank you - I have contacted an employment solicitor yesterday, and I'm waiting now for response.
Brendan Burgess
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I really think that you should appeal the decision over the heads of HR.
Take legal advice, but send the letter yourself in the first instance.
You have a much better chance of settling it without an adversarial approach.
Most employers are decent.
You should then look at whether this is suitable for the Financial Services and Pensions Ombudsman.
The problem with solicitors is that they are comfortable in courts and often avoid the cheapest route to resolving an issue.
Brendan
Take legal advice, but send the letter yourself in the first instance.
You have a much better chance of settling it without an adversarial approach.
Most employers are decent.
You should then look at whether this is suitable for the Financial Services and Pensions Ombudsman.
The problem with solicitors is that they are comfortable in courts and often avoid the cheapest route to resolving an issue.
Brendan
Possibly this has already been verified?
I am looking at post 17 on this thread. How I reading the opening lines of that post is that the terms "eligible" and "non-eligible" are used in the employment contract that you got.
Has it been clarified which bucket you are in?
Take a look at this link - https://www.thepensionsregulator.go...e-for-business-advisers/opting-in-and-joining. UK pension regulator but could also be the case for Ireland?
Reading through it, it appears to me that once the employer has informed the employee of the pension scheme, the onus is solely on the employee to take action (or not).
I am looking at post 17 on this thread. How I reading the opening lines of that post is that the terms "eligible" and "non-eligible" are used in the employment contract that you got.
Has it been clarified which bucket you are in?
Take a look at this link - https://www.thepensionsregulator.go...e-for-business-advisers/opting-in-and-joining. UK pension regulator but could also be the case for Ireland?
Reading through it, it appears to me that once the employer has informed the employee of the pension scheme, the onus is solely on the employee to take action (or not).
anbodearg
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I don't know who else I can appeal to other than HR.
My manager, and his manager were both on the call and neither is disagreeing with HR, who is saying 'tough luck'.
Because they didn't receive a signed form from me, I wasn't in the pension. And that's that.
The onus is 100% on the employee.
They don't accept any responsibility at all for not following up even once in 15 yrs.
Even if I had submitted the form, and they lost it then their position remains the same.
Of course, they have profited from this for 15 years without paying my contribution.
That doesn't seem right either, but I suppose that would require acceptance of responsibility for what happened.
I'm due to speak with employment solicitor tomorrow.
So, I'll just take it from there I suppose.
thanks for all your help
In a lot of companies, pensions are an opt-in process. Forms needs to be signed, contributions decided. There might be general information from time to time to encourage employees to opt-in but no individual checks. I managed a large team for years in a us multinational, not once was I asked to address it on an individual level. It was not checked and imposed on anyone. Was there communication in your company encouraging people to join?
Is there legislation in place that says they should?
It would be interesting to hear the feedback from the solicitor you will meet
thedaddyman
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What a mess. Firstly you should go back to your employer and request a copy of every payslip that they ever issued you. That PIN thing is just for access, some of the records should be there. They may not be able to supply them all to you as GDPR only requires them to store 6 years but let them say they've not got them
In terms of your contract, is eligible employees a capitalised term or not?. In effect, is it defined anywhere?. If not, ask them for a definition of this at the time you signed your contract and that may provide clarity.
Ask them to confirm if you opted out. ? If they say no record existed, then why were you never registered as a scheme member since it was a term of your contract.
Don't be afraid to go threaten to go nuclear on this as you have nothing to lose.
However you also need to take some responsibility for this. In addition, the employer can legitimately say that your take home pay was 4.5% higher then it should be so you have benefited from their error and the only loss you've suffered is the accrued increase in value in what your pension would have been.
In terms of your contract, is eligible employees a capitalised term or not?. In effect, is it defined anywhere?. If not, ask them for a definition of this at the time you signed your contract and that may provide clarity.
Ask them to confirm if you opted out. ? If they say no record existed, then why were you never registered as a scheme member since it was a term of your contract.
Don't be afraid to go threaten to go nuclear on this as you have nothing to lose.
However you also need to take some responsibility for this. In addition, the employer can legitimately say that your take home pay was 4.5% higher then it should be so you have benefited from their error and the only loss you've suffered is the accrued increase in value in what your pension would have been.
Is it voluntary redundancy with a package involved? If it is, bear in mind that as part of this 'package', you are going to have to waive all legal claims against the company now and in the future. By all means, get legal advice but make sure you include any potential impact on redundancy package in that. You could have good case or have no chance of success but the nature of the redundancy will also matter. If the company is closing down, they might be willing to do a deal. If they are not, they might be happy to let you go legal route but you won't be able to accept the voluntary redundancy and take a claim.
Brendan Burgess
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Are you definitely using a specialist solicitor and not just a general practice solicitor?
Ask them specific questions e.g.
1) Can you go to the Financial Services and Pensions Ombudsman?
2) If so, what is the time limit?
3) Have they taken many cases on pensions entitlement to the FSPO?
4) Have they any similar cases which would guide you on the FSPO's thinking on this issue?
5) Ask this solicitor if they deal with probate and family law and conveyancing. If they do, then they are the wrong solicitor for you.
Brendan
Brendan Burgess
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I think that the FSPO covers your complaint
You can complain about the conduct of a pension provider involved in the administration of your pension scheme.
For example, we can investigate the conduct of a pension provider for the following:
Check out the FSPO's decision database to see if there is anything similar to yours
The descriptions are generic, but here is a few which might be relevant. You will have to review them all.
You can complain about the conduct of a pension provider involved in the administration of your pension scheme.
For example, we can investigate the conduct of a pension provider for the following:
- miscalculating your pension benefits, under the rules of the scheme
- failing to do something it should have, which caused you an actual loss of benefit under the scheme
- not following the scheme rules or the law
- without good reason, taking too long to do something, that causes you an actual loss of benefit under the scheme
- Employers who offer occupational pension schemes.
- Trustees of a scheme
- Administrators of a scheme
- Consultants, advisors, investment managers, custodians, paying agents, insurers or actuaries of a scheme
- Government departments or state bodies running pension schemes for employees
Check out the FSPO's decision database to see if there is anything similar to yours
The descriptions are generic, but here is a few which might be relevant. You will have to review them all.
anbodearg
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There was no communication - ever - encouraging people to join.
I can only assume that hardly anyone was not in. Maybe I was the only one not in?
yes, there is a severance package with a waiver to sign.
The company is not closing down.
I think the only question really is if 'opt-in' was required, since it was a 'condition of employment' according to the contract.
I think those two terms are mutually-exclusive.
The company is saying 'condition of employment' is only my interpretation and that 'opt-in' was required.
So, if my interpretation is correct then I should have been automatically enrolled.
But it 'opt-in' was required, then I guess I'm screwed.
Would I have to give up my severance and then take a chance on a legal challenge on the pension?
They won't give you a package without the waiver. You should have access to an employment solicitor as part of the redundancy. Ask them but I think you will be advised that you have made a very expensive mistake and who is right or wrong doesn't matter. Don't risk a large redundancy payout unless you are convinced you have a strong case. I don't think you do but get proper legal advice.
anbodearg
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Thank you Brendan.
Some are 'partially upheld'. I guess that's probably the best outcome I could hope for.
My severance package has a legal waiver to sign.
If I was a gambler, I think I wouldn't take the chance.
Yes, I have access to solicitor as part of the redundancy. I hope tomorrow to be discussing this.
I think you are right - the risk of losing the redundancy serverance *and* losing the case ... too big a risk.
I think the only question is that the contract says it is a 'condition of employment'.
This could mean that 'opt-in' was not legally a pre-condition and therefore I should have been automatically enrolled.
Even if all that is true, I don't see how I could be considered blameless.
Maybe if I had signed the form in 2007, and it got lost along the way ...maybe, but nobody knows.
But still I should have followed-up. And HR should have followed-up, although they had no obligation to.
Ultimately, it was my responsibility to ensure that everything was in order, I guess.
I think the contract wording is a bit dodgy, but other than that I'm not feeling optimistic.
It's an employment solicitor - recommended by our family solicitor.
Reducing the severance package on foot of an action re pension is retaliation & would give the OP an additional ground for complaint.
No it wouldn't. It's a voluntary redundancy hence you get more than statutory. On the back of that you are expected to waive all legal claims against the company including any action under any employment law. Free not to sign that waiver but don't expect an enhanced redundancy package.
NoRegretsCoyote
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Wouldn’t this be an issue first for the WRC?
If there was never a pension fund in the first place am not sure what the FSPO can do…..
I disagree. OP has left the firm and taken a package so no relationship to be maintained. I suspect the employer will do nothing unless there is a credible threat of legal action.
The OP has not left the company. He is still finalising a voluntary redundancy package which involves a significant payment over and above what the company is legally obliged to pay.
That's to protect company against an unfair dismissals claim.
I'm a tad cynical, but I believe most of these 'redundancies' are in fact dismissals, and they pay 2 or more years of salary so you won't do any better by claiming unfair dismissal where 2 years salary is the max payout anyway.
OP can sign the waiver, it doesn't prevent them from bringing a claim for compensation in respect of what they believe to be a breach of their contract whilst they were in employment, and for which they have a legitimate right to issue a claim.
Whether or not that claim succeeds is another story; but they have the right to submit a claim.
Reducing the redundancy package based on the OP exercising that right is retaliation and won't be accepted should this get to a WRC hearing.
IANAL