Made redundant after 15 yrs. Just discovered I was not in pension, but I thought I was

Does anyone have a recom

Brendan Burgess said:

The Ombudsman or the Court will have to agree who is at fault here. So it's important to clarify what action the OP took 15 years ago.

So it is necessary to assess what he did.

He appears to have never checked his payslips.
So never checked was the tax being deducted correctly.
Never checked if the correct salary was being paid.
Never checked the pension contributions.

And why? Because he forgot his PIN.

I really don't think that his employer can be held responsible here when he showed such a gross irresponsibility.

Brendan

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Brendan,

All fair comments.

I did check my payslips (though I stopped in recent years).
I did check was the tax being deducted correctly.
I did check was the correct salary being paid
I *did not* check the pension contributions.

There were deductions for BIK (for example), and I can clearly remember checking those.
I honestly don't remember if I ever checked for pension contributions.
Though, I did assume that I was part of a pension.
I never refused or opted-out.

Brendan Burgess said:

OK. These were probably badly laid out so it might not have been obvious to you that you were not in a pension scheme as we know it.

However, they should have been clear enough for you to question them.



So you checked your payslip but did not notice that they were not deducting anything from your pension? That just seems a bit odd.
Why did you not alert them "Hey - why are you not deducting 4.5% of my salary for my pension?"

And what about your colleagues? Did you have a chat with them about how the pension fund was doing?

It is hard to remember exactly what happened 17 years ago. But assuming your memory is correct, and that you were not put in the pension scheme due to an oversight, the company should make a goodwill gesture and pay you the equivalent of what they would have contributed had you been in the scheme.

However, you should not get anything for money which you should have contributed but didn't.

Brendan

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In the early years 2007, I was checking my payslip. I can't say for sure if I checked for pension, or if it was there or not.
Maybe I checked. Maybe it was there. I don't know, and there is no record.

For the last 3 years, I've been working remote - my boss in USA, and rest of team around Europe.
I haven't been in the office, and not had any chat with office colleagues (water cooler, canteen, etc.), so this has never come up in conversation.
Ironically, there was an information email recently about updates to the company pension.
I was on the distribution list, but then I realised that every employee was.
It never once dawned on me - then or ever - that there was any possibility whatsoever that I was not on the company pension.

Looking at the situation today, is it fair to say that while I am responsible for not double-checking, it's not entirely my fault?
And likewise for the employer?

If employer does make a goodwill gesture, what would be reasonable?
Should I be happy with anything at all?
If nothing at all is offered, should I just accept that it is all my own fault?

It's a very unusual situation.

You should have been in the pension scheme according to your contract.

So, on the face of it, they made an error.

However, you should have picked up on it at the time and can't really complain too loudly 17 years later.

But your employer has benefitted from not making contributions.

So I don't think that they should. Which is why I think a fair solution would be that they would give you the equivalent of their contributions but no "compo" for you not making contributions.

Brendan

Clamball said:

From my own experience in my company HR and other staff did audit and review which staff were or were not contributing to a pension and acted on it. So HR have a significant responsibility in this. They normally don’t do stuff unless they have to in my experience.

The power of a written signed contract is very important, unless HR can produce the opt out/ opt in form signed by the OP then this is also their responsibility. If they could perhaps show that those who joined the company 6 months prior and after the OP joined either all signed an opt in and were added to the pension or an opt out and were not added it would strengthen their hand. But using GDPR as an excuse not to maintain pension records is daft as there is a need for these records for decades.

Just because the previous HR manager is gone from the company does not mean that they are absolved of responsibility.

And if the OP was paying 4.5 % salary into a scheme why would he not think it was a pension scheme as laid out in his contract - unless he got specific information from his company saying otherwise at inception.

Yes, there is some responsibility on the OP but many many people do not understand the first thing about pensions, so why assume that the OP needed a certain level of financial knowledge at all?

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It is unbelieveable that HR didn't once check with me in 15 years, if I didn't want to be in the pension.
It is also unbelieveable that I didn't once check with HR in 15 years, if I was in the pension.

But, this is exactly what happened.
I feel that I am to blame, and at the same time I feel this is not my fault.

Brendan Burgess said:

It's a very unusual situation.

You should have been in the pension scheme according to your contract.

So, on the face of it, they made an error.

However, you should have picked up on it at the time and can't really complain too loudly 17 years later.

But your employer has benefitted from not making contributions.

So I don't think that they should. Which is why I think a fair solution would be that they would give you the equivalent of their contributions but no "compo" for you not making contributions.

Brendan

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Is the equivalent of their contributions approx 4 or 5% of my gross salary per year for 15 years?
Is that correct?
Is there no sense calculating or even considering what the pension value would be over that time?

It would depend on whether it was a defined benefit or defined contribution scheme.

I am assuming it was a defined contribution scheme in which case the contract should have said "And the employer will contribute x% per year"

I don't know if the Statute of Limitations applies to such matters. But if someone owes me money for the last 17 years, I can only go back 6 years, which seems about right.

That is why I think you should engage with your employer first in a friendly manner. If you fire off a solicitor's letter at this stage, they may match your confrontational approach.

Ask them for their side of the story and how they propose to resolve it.

At that stage, if you do not get a satisfactory offer, take legal advice.

Brendan

To me it sounds like he already has engaged with the employer and they are saying "tough luck" but I guess only the OP knows exactly what has been discussed and in what tone of voice. I am now asking myself if I as a 20 something would have really noticed if my pension deductions weren't being made. I can't recall ever seeing somebody else's payslip. I may have just assumed it "happens in the background". It seems hard to believe that you could go 17 years without realising you're not in the pension scheme but the OP would surely have taken action if he thought he wasn't.

Yes, I thought it was happening in the background. I have mortgage and young family - there's no way I would have let this happen intentionally.

It’s hard to believe I didn’t query it. It’s also hard to believe HR didn’t query it either. In 15 years.

HR has said 'tough luck', but I think they are to come back with official response.

Given the amount of money involved it would be advisable to seek legal advice if HR are indeed saying tough luck. It may be for nothing but it's definitely worth spending a couple of hundred quid in legal fees to find out if you have a case at all. If you don't spend that money you will always be wondering to yourself if you could have squeezed something out of them.

the GDPR excuse for not having the HR records is bull IMO - GDPR states that you need a valid reason to retain personal data beyond a reasonable time. You still being employed by them is a perfectly valid reason.

Obviously you can't go back in time now, but anyone else reading this - check your payslips and pension statements periodically, don't just assume your employer knows what they're doing or is even concerned about your interests.

anbodearg said:

The contract says exactly that. I took a screenshot of the contract, and typed-in exactly what was written.
I never opted-out of the pension. I assumed I was in the pension.

According to HR, I would/should have been given a form to sign when I joined to opt-in.
As they didn't receive this form back from me, I didn't opt-in.
I have no recollection of this, and there is no record of this.
It was in 2007. The HR manager is no longer with the company.
The HR records don't go back that far 'due to GDPR'.

I have a few annual pension statements which I received from Irish Life.
I called Irish Life, and they confirmed that I was on the pension.
But then HR afterwards confirmed that the 'pension' was the 'death in service' one, and not the regular pension.

I did definitely check my payslips. Over time I stopped checking them regularly.
And then after a while I just checked my bank statement.

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I agree with other posters have said it, it all rests on what the contract says.
The question is, what did HR say to you, when you pointed out the wording of the contract?

Also it seems odd there would be a need for an opt-in form, when they were specifically issuing contracts with automatic enrollment.

nest egg said:

I agree with other posters have said it, it all rests on what the contract says.
The question is, what did HR say to you, when you pointed out the wording of the contract?

Also it seems odd there would be a need for an opt-in form, when they were specifically issuing contracts with automatic enrollment.

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HR was a bit vague, and said the wording was open to interpretation.
As I see it, the contract says it was not optional - ie I had to join the Company Pension as a condition of employment.
So, I don't see how I could not have been in it.
It's quite possible that I was initially on it, and that everything was in order.
But there are no records available for 2007, so nobody can say for sure.

I am hoping that there will be a formal statement from HR.
It is hard to see how they would not accept any responsibility.

anbodearg said:

HR was a bit vague, and said the wording was open to interpretation.
As I see it, the contract says it was not optional - ie I had to join the Company Pension as a condition of employment.
So, I don't see how I could not have been in it.
It's quite possible that I was initially on it, and that everything was in order.
But there are no records available for 2007, so nobody can say for sure.

I am hoping that there will be a formal statement from HR.
It is hard to see how they would not accept any responsibility.

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I everything was in order at some point and you contributed, the pension company should have the records I would think as contributions would have been paid.

anbodearg said:

I am hoping that there will be a formal statement from HR.

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And if you are not happy with it, go over their heads.

Set out a list of questions for them.
1) It was a term of the contract, so opting out was not an option
2) Did they routinely check when someone was not in the pension scheme?
3) Why did you get a pension statement annually when you had no pension?

anbodearg said:

hoping that there will be a formal statement from HR.

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Wasting your time here; HRs job is to protect the company, not its employees.

And you are leaving to boot.

Get off the back foot; check your contract & start from there.

Forget about explaining how or why you didnt check your payslip; immaterial at this point. When you're explaining you're losing.

anbodearg said:

HR was a bit vague, and said the wording was open to interpretation.
As I see it, the contract says it was not optional - ie I had to join the Company Pension as a condition of employment.
So, I don't see how I could not have been in it.
It's quite possible that I was initially on it, and that everything was in order.
But there are no records available for 2007, so nobody can say for sure.

I am hoping that there will be a formal statement from HR.
It is hard to see how they would not accept any responsibility.

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What exactly does the contract say, why would they say they say it's open to interpretation?

HR can also be protecting themselves from further scrutiny when they say tough luck, nothing to see here, move along. And when a higher up asks, didn’t Bob raise some query about his pension when he was leaving they will say - it was handled - all was resolved in favour of the company.

Without the 2007 paperwork all they have to go on is the contract and the pension statements issued to you. Do you still have them? All ours went into the attic, sort of important to keep but lots of reading. They are on very shaky ground if they cannot produce a signed opt out document to counteract the contract. Do they have blank copies of the document even to prove it was an option in 2007? And do you have any early payslips. Really need to do a full search of the house for the that.

Brendan Burgess said:

And if you are not happy with it, go over their heads.

Set out a list of questions for them.
1) It was a term of the contract, so opting out was not an option
2) Did they routinely check when someone was not in the pension scheme?
3) Why did you get a pension statement annually when you had no pension?

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On point 3 some brokers/providers did issue “risk benefit statements” previously and still do on request which would be for Death in service only employees (ie you are covered for 4 times salary) .

This could have been confused as a “ risk and pension statement “ or standard annual MBS legally they have to issue showing fund at renewal … OP is part of the pension scheme technically for death in service just not contributing employee .

Brendan Burgess said:

And if you are not happy with it, go over their heads.

Set out a list of questions for them.
1) It was a term of the contract, so opting out was not an option
2) Did they routinely check when someone was not in the pension scheme?
3) Why did you get a pension statement annually when you had no pension?

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thanks, I've submitted those questions..
ie
is there any record of my 'opt-out', as it was a condition of employment and not optional
is it company policy to check yrly with employees not in the pension scheme - if they want to join
is it policy of trustees to check (yrly) with company with employees not in the pension - if they want to join
I've asked for all documentation relating to those three question.
thanks again, everybody

I would suggest you also make a formal data subject access request under GDPR by email. Specify you also any information relating to your pension , deductions from salary and contract. they have a month to respond and it should have all the mails/emails/ memos etc with your name on it relating to this.

I would write separatley to the Trustees and the company. It will up the ante a notch.

Regardless that membership was compulsory per the handbook you still have to join the scheme and select an investment fund. Some posters seem to expect the company to have done this without consulting you ?.Good practice would require an opt-in opt-out form to be completed but in my experience it is very difficult to get employees to return these.
Its possible the Trust Deed was changed to remove the compulsion to join ( we had to do same in our scheme as many employees did not want to join) and this may explain why it has gone unnoticed at each yearly renewal of the risk policy.
As you are a risk only member you would likely have completed a wishes declaration for who your death benefit would go to. Look for a copy of that. When they find that they may find something else. We had a wishes form when joining the company ( risk only for 6 mths) and then the wishes form was updated again as part of the opt-in opt-out form.

It doesn't matter about finding the old payslips - you were never contributing, that much is clear.
I'm sure yours would not be the first case in this area but maybe unusual for such a long period.

The problem with any settlement that may be agreed is that it will be outside the tax-efficient pension system.

ClubMan said:

Are you sure that that's the verbatim wording?
The sentence doesn't really make sense.

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"It is a condition of employment that you become a member of the Company Pension Scheme, to eligible employees. Employees' contribution is 4.5% of pensionable salary. "

“yes, that's the verbatim wording. There's another paragraph for non-eligible employees, where a PRSA is provided.”

The first sentence is indeed very clumsily constructed and looks like someone tacked on the words “to eligible employees” to create a separate class of employee that didn’t previously exist. It may be that the OP was not an employee of the type that rendered him “eligible” and that the condition therefore didn’t apply.

In this case, he would be covered in the condition relating to non-eligible employees where a PRSA “is provided”. It’s not clear however that participation in the PRSA was mandatory.

Maybe the first thing to establish is what the conditions are to have been considered eligible. HR can’t rely on ignorance to avoid that question.