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Thankfully most employers are aware of their statutory obligations when advising employees of their pension benefits, especially in relation to auto enrolment or changes in the company pension scheme.

However, the recent decision of the Deputy Pensions Ombudsman in a complaint by the estate of a deceased employee against Belfast City Council (BCC) highlights that an employer’s obligations can go further than these statutory examples. The Ombudsman decided that employers are also required to make appropriate enquiries and provide sufficient advice to employees to ensure that they are able to make the best choices regarding their pension benefits.

Background

Mr Y was an employee of BCC. He was diagnosed with cancer in 2012. In May 2013, he was recommended for early retirement on grounds of permanent ill-health. His three-month notice period started on 26 May 2013 and was due to end on 17 August 2013. Unfortunately, on 24 July 2013 Mr Y was informed that his diagnosis was terminal. According to Mrs Y, she telephoned BCC the same day to tell them of Mr Y’s condition and enquired about the option of taking some of his benefits before his termination date so they could take a family holiday prior to him receiving further treatment. BCC disputed this position. They argued that Mrs Y only requested payment of a lump sum for the holiday and had never asked that Mr Y’s wider benefits be brought forward.

Mr Y died three days before the expiry of his notice period. This meant that Mrs Y was entitled to a death in service payment. This was significantly lower than the benefit for death in retirement to which she would have been entitled if Mr Y’s employment had ended.

Decision

The Ombudsman favoured Mrs Y’s account and held that BCC “ought reasonably to have enquired” as to whether Mr Y wished to waive his remaining notice period, even though Mrs Y had not specifically requested about this.

Implications for employers

Employers should be aware that pension scheme members will usually find it more cost-effective to complain to the Pensions Ombudsman than to sue in the courts. An Ombudsman may aim to reflect what is fair and reasonable in the circumstances so Ombudsman decisions are less predictable than those of the courts, which are bound by existing case law and rules of evidence.

This decision suggests a widening of the employer’s obligations to advise employees about different options available when discussing pension benefits. It means that once an employee enquires about their pension benefits or communicates a relevant change in circumstances, employers should ensure they highlight the options available – while avoiding giving unauthorised financial advice!

The decision does not sit entirely easily with previous authority that employers do not have an implied duty to warn or advise employees about the potential financial consequences of decisions affecting their pension benefits. However, the House of Lords has held that an employer could have an implied obligation to warn its employees about their pension rights if that right has not been negotiated individually or the employee cannot reasonably be expected to be aware of the particular right unless it is drawn to their attention. Given the complexity of many pension schemes, it would be unwise to rely on employees being aware of all their options.

In light of the above, employers should consider carefully what and how they communicate to their employees about pension benefits. When in doubt, they should seek professional advice to limit the risks of providing inadequate or incorrect information. A practical answer may be to adopt pre-agreed checklists to support benefit payment enquires in common situations, such as actual or expected deaths in service.

The Parental Bereavement (Leave and Pay) Act 2018 was given royal assent on 13 September 2018, having started out in July 2017 as a Private Member’s Bill subsequently supported by the government.

The Act will offer, as a day one right, two weeks’ leave to any employed parents who lose a child under the age of 18 or who suffer a stillbirth after 24 weeks of pregnancy. Employees will also be eligible for statutory bereavement pay if they meet certain criteria, including that they have been employed for at least 26 weeks, ending in the week of the child’s death, and have given the correct notice.

Bereavement leave must be taken within 56 days of the child’s death and parents who have lost more than one child will be entitled to take leave in respect of each child.

The Act provides that regulations will be made in due course, setting out how parental bereavement leave and pay will be taken, and the eligibility criteria. This will include details of notice requirements, whether leave can be taken in separate blocks and whether employees who are not the biological parent of a child (but who have been significantly involved in caring for the child, such as step-parents) will also qualify for leave and pay.

The rights provided by the Act are expected to come into force in April 2020, but this will be confirmed by the regulations.

Under current legislation, employees have the right to take a reasonable amount of unpaid time off work to make arrangements following the death of a dependant. However, the cases on this limit the amount of time off to one or two days at most, save in exceptional circumstances. The change in law is therefore the first time in the UK that specific bereavement leave has been made both a legal right for up to two weeks and paid.

Employers may already have in place a policy on bereavement. Acas has published a  guide to managing bereavement in the workplace, which is available at http://www.acas.org.uk/index.aspx?articleid=4977

After the regulations have been published, employers should consider reviewing any existing policy or putting one in place, and should ensure that managers and HR are trained on the new rules.

Born out of frustration after years of women in the city earning less than their male counterparts, the UK’s gender pay gap reporting regime has provided a sense of optimism amongst executives. Companies have been seriously concerned with the impact on their reputation. With the transparency of published figures, companies risk facing public backlash. With that in mind, many of the larger banks are beginning to pilot new schemes ranging from encouraging women to take on roles that are more male-dominated to attempting to remove gender bias from the recruitment system by anonymised certain information. Several other companies are aiming to pilot similar schemes focusing at the mid-career level for women and if those schemes prove successful to implement them on a larger scale.

An employee on a temporary zero hours contract should be classed as an agency worker, the Employment Appeal Tribunal found in Brooknight Guarding Limited v. Matei.

Background

Brooknight Guarding Limited employed Mr Matei as a security guard on a zero hours contract for 21 months. He worked mostly for Mitie Security Ltd, although not exclusively, and Brooknight could assign him to different clients. Mr Matei claimed he should be classed as an agency worker under the Agency Workers Regulations 2010 (Regulation 3(1)). As a result, he said he should be entitled to the same basic working conditions as Mitie staff after 12 weeks of service. The ET found Brooknight was using Mr Matei as a ‘cover security guard’, rather than an employee on a permanent basis, and so the ET classed him as an agency worker. Brooknight appealed the decision to the EAT on the basis that the employee could work on a zero hours contract and still be a permanent employee of Mitie.

Decision

The EAT agreed with the Tribunal’s decision and dismissed Brooknight’s appeal. The Tribunal had considered the nature of Mr Matei’s contract and short period of employment, but these factors were not the determining factors; the focus was on the nature of the work and whether it was temporary. Brooknight’s own correspondence with Mr Matei itself suggested the relationship was temporary. The Tribunal was therefore right to conclude that Mr Matei was an agency worker and entitled to the same terms and conditions as those working directly for Mitie.

Conclusion

The decision informs us that the key issue a tribunal will consider when determining agency worker status is the nature of the work carried out and whether the work is permanent or temporary. The EAT considered the nature of Mr Matei’s contract and relatively short period of employment, but they were not determinative. Employment businesses will need to be mindful that an agency worker on a zero hours contract can still gain rights under the 2010 Regulations after 12 weeks’ service, if the nature of the work is temporary. End users will also have to take note, since they can be held liable for any breach of week 12 rights under the Agency Workers Regulations.