Pensions update Member Nominated Trustees a summary of the new provisions

Transcription

1 Pensions update Member Nominated Trustees a summary of the new provisions May 2006

2 Contents Welcome to the latest edition of the Pensions update. Please click on the links below to find out more about each of the topics. 1. Overview The basics Determining the commencement date for your scheme Reasonable Periods Number of trustees and other considerations Nomination After nomination Selection Communication of outcomes Review Record keeping and penalties for noncompliance Corporate trustees...6 Page 2

3 Member Nominated Trustees a summary of the new provisions 1. Overview New Member-Nominated Trustees (MNTs) requirements came into force on 6 April 2006 under the Pensions Act The Pensions Regulator has issued a draft Code of Practice (Member Nominated Trustees and Directors putting in place and implementing arrangements) ("the Code") which provides guidance on compliance with the new provisions. A final draft of the Code was issued to coincide with the legislation coming into force on 6 April Although the Code has still to be laid before Parliament, few further changes are expected to it, if any at all. Determine the commencement date for your scheme Within six months, establish procedures for the nomination and selection of MNTs. Within a further six months, follow the nomination and selection procedures. Where a vacancy is not filled, repeat the nomination and selection process at reasonable intervals (at least every three years). Review the arrangements every three to five years. 2. The basics Under the new regime, all schemes will need to have at least one-third MNTs. It will no longer be possible for schemes to operate 'opt-outs' from the MNT provisions. Trustees will need to design and implement arrangements for the nomination and selection of MNTs and guiding principles behind those arrangements will need to be proportionality, fairness and transparency. The Regulator will expect these principles to be applied to all aspects of the new processes. The flowchart opposite gives an outline of the steps that trustees will need to take: Keep a written record of all steps taken. 3. Determining the commencement date for your scheme The commencement date will vary from scheme to scheme. For schemes with no employer opt-out in place it will be 6 April 2006, and for those where an employer opt-out is in place, the commencement date will be the earlier of 31 October 2007 and the date upon which the current opt out lapses. Page 3

4 4. Reasonable Periods Trustees will need to establish nomination and selection procedures within a 'reasonable period' of the commencement date. They will then need to implement them within a further 'reasonable period'. The Code suggests that, in most cases, the Regulator will regard a reasonable period as being up to six months. Therefore, trustees will have up to six months in which to establish nomination and selection procedures and up to a further six months in which to implement them. However, trustees should note that what is reasonable is likely to vary depending upon the size, structure and circumstances of the scheme. The Code suggests that the Regulator is likely to expect most schemes to establish nomination and selection procedures within the six month period. In particular, smaller schemes are likely to need to establish procedures well within the six month period and, where an employer opt out is in place, the Regulator will expect trustees to consider the arrangements to be put in place before the opt out expires. Larger schemes may be allowed some flexibility and (provided that the procedures are under way) it might not be necessary, in every case, to complete the nomination and selection process within the second six month period. Trustees will need to check the scheme rules. Where the scheme's trust deed and rules provide for more than one third MNTs, that requirement will override the statutory provisions. Conversely, the trustees will need the agreement of the scheme employer if they wish to have more than one-third MNTs and the rules of the scheme do not provide for this. Any MNTs that are already in post will count towards the one-third requirement for MNTs under the new regime. The Regulator recommends that, when establishing nomination and selection procedures, trustees consider (and consider consulting the employer on) other general aspects of the appointment of trustees, such as eligibility criteria, term of office, the effect of the resignation of a trustee, and the effect of a trustee ceasing to be a member of the scheme. In addition, the Code specifies a number of matters that must be provided for by the nomination and selection procedures. The trustees will need to ensure that these are reflected in the arrangements they put in place. 6. Nomination The nomination process will need to identify the candidates for subsequent selection. It will need to be proportionate, fair and transparent. 5. Number of trustees and other considerations Under the Pensions Act 2004, the Secretary of State for Work and Pensions has the power to increase the minimum number of MNTs to one half of trustees. However, the current requirement is for at least one third of the total number of trustees to be MNTs. For example, if there are nine trustees, then three must be MNTs. Any consenting scheme member may be nominated (provided they meet the usual legislative requirements for trustees of pension schemes). Any further eligibility criteria that the trustees wish to apply to nominees must be chosen with regard to the principles of proportionality, fairness and transparency. The trustees should obtain the agreement of the scheme employer if they wish to permit the nomination of people who are not members of the scheme. The nomination process must involve at least all the active and pensioner members of the scheme or organisations that adequately represent them. The process may involve both the individual members and organisations that represent them. Trustees may involve other categories of members (for example, deferred members) in the nomination process if they consider it appropriate in the context of their scheme. An example of this might be where Page 4

5 the scheme has a high proportion of deferred members. The Code contains guidance as to what trustees should consider when deciding whether an organisation adequately represents active and/or pensioner members. It also suggests organisations that might meet those criteria (for example, recognised trade unions, staff committees and pension management committees). The nomination process should provide for effective communication to the members and/or representative organisations involved of the essential details of the nomination process. The Code lists a number of items of information that should be provided as a minimum. These include details of any eligibility criteria and a short explanation of the role of a trustee and of any training available. Here, the Code suggests directing prospective trustees to the e-learning programme for trustees offered by the Pensions Regulator. The Code suggests possible methods of communication with members or the organisations that represent them. Examples include use of a staff notice board, staff magazine or post. Trustees will need to pick a method or the methods most suited to the membership of their scheme. For example if many of the members are deferred or pensioner members, it might be appropriate to communicate by post. However, the Code does suggest that trustees consider using their usual methods of communicating with members. 8. Selection The selection process will need to determine which of the nominees will be appointed as MNTs. It will also need to provide for MNTs who are selected (or deemed selected) to be appointed. In deciding on all aspects of the process, the trustees will need to have regard to the principles of fairness, transparency and proportionality The selection process must involve some or all of the members, and may also involve representative organisations. The Code contains guidance as to selection methods that might be used. These include a ballot or a selection panel. The selection process should provide for the members and/or organisations involved to receive the essential details of it. The details provided should include, at least, the outcome of the nomination process, the method of selection and what those involved in the selection process need to do. As before, the trustees must select a method of communication that is appropriate for their scheme. 7. After nomination The nomination procedure should set out what will happen if the number of nominations received is equal to or less than the number of vacancies open. The procedure can provide that those nominated are deemed selected. Alternatively, it can provide that a selection process will be run. The nomination procedure must provide that, if the number of nominations received is less than the number of vacancies, the nomination and selection processes will be repeated at reasonable intervals until any vacancy has been filled. The Regulator originally stated that it would consider a reasonable interval to be 12 months. However, it now requires the procedures to be re-run no more than three years from the end of an unsuccessful nomination process, or (if earlier and appropriate) after any significant change in scheme membership. 9. Communication of outcomes The outcome of the nomination process, the outcome of the selection process, and details of the selection process should be sent to the members involved in both processes. 10. Review Trustees must keep their nomination and selection procedures under review and ensure that they remain appropriate for their scheme. The Code recommends a review every three to five years, with the trustees to consider an earlier review if there is any material change to the circumstances of the scheme (for example, a bulk transfer in or a large number of redundancies). Page 5

6 11. Record keeping and penalties for non-compliance Trustees should keep a written record of the nomination and selection procedures and of the steps taken to implement them and otherwise secure compliance with the MNT requirements. They should also consider keeping a record of the factors they took into account when deciding how to comply with the MNT requirements and of the reasons for the decisions they took. Trustees should be happy that, if asked, they could show the Pensions Regulator that they have complied with the MNT requirements. The penalties for non-compliance range from education to the removal of a trustee from office and imposition of a fine. 12. Corporate trustees Similar requirements apply in relation to Member- Nominated Directors. If you would like to discuss any of the issues please contact your usual Osborne Clarke contact, or:- Paul Matthews t: f: paul.matthews@osborneclarke.com Jennifer Cave t: f: jennifer.cave@osborneclarke.com Page 6