Preservation and transfer of benefits in occupational pension schemes on termination of employment. Overview of occupational pension schemes

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1 Preservation and transfer of benefits in occupational pension schemes on termination of employment Overview of occupational pension schemes The term occupational pension scheme essentially covers any arrangement set up by an employer within the State to provide retirement and other benefits for one or more employees and which has been approved by Revenue under the Taxes Consolidation Act A scheme which has received Revenue approval means that any contributions made to the scheme by the employer or employee may be made on a tax free basis (subject to Revenue limits). Occupational pension schemes are usually governed by a trust deed and rules and are regulated by the Pensions Act 1990 ( the Act ). The Pensions Board oversees the operation of the Act in relation to the running of occupational pension schemes, trust based Retirement Annuity Contracts (RACs) and Personal Retirement Savings Accounts (PRSAs). Generally speaking, an occupational pension scheme will be one of two types; defined benefit or defined contribution. A defined benefit scheme is one in which the scheme rules promise a defined level of retirement benefit, usually related to the member s final remuneration and service completed with the employer. For example a scheme may promise a pension to members at normal retirement age of 1/60 of final remuneration for each year of service completed with the employer. Defined contribution schemes provide a benefit at normal retirement date which is directly determined by the amount of the contributions paid by and/or in respect of the member. No promise is given with regard to the level of retirement benefit which will be provided for a member. Preserved benefits and qualifying service on termination of employment A member of an occupational pension scheme with the requisite period of qualifying service and whose employment is being terminated is afforded protection of the benefits accrued to the date of termination under Part III of the Act, the Second Schedule to the Act and Regulations made thereunder. These provisions give members of occupational pension schemes a statutory right to a minimum preserved benefit provided that the member s service in relevant employment terminates otherwise than on death before normal pensionable age and provided that at the date of leaving the service of the employer the member has completed at least: (i) Five years qualifying service where service terminates on or before 1 June At least two of those years of qualifying service must have been completed after 1 January 1991 (ii) Two years of qualifying service which fall after 1 January 1991 where service in the relevant employment terminates on or after 2 June 2002.

2 The reasoning behind the legislation is to provide an employee who leaves an occupational pension scheme before normal retirement age with a statutory entitlement to a proportionate share of the retirement benefits to which the employee would have been entitled had he or she remained in the service of the employer (and a member of the employer s pension scheme) until normal retirement age. An employee with less than two years completed scheme service has no legal entitlement to any minimum retirement benefit. Such an employee might only be permitted to take a refund of the contributions he or she has made to the scheme (the employee will have received full tax relief on the original payments), less tax at the standard rate of income tax, currently 20%. An employee who opts for such a refund automatically loses the right to benefit from any employer contributions. However, the rules of the scheme may well provide for full or partial entitlements to an employee with less than two years scheme service as there is nothing to prevent a scheme providing members with preserved benefits above the minimum scale of preserved benefits applicable under the legislation as long as they do not exceed Revenue maximum limits. A number of schemes are specifically excluded from the preservation requirements on the basis that the benefits which they provide on leaving service are no less favourable than those required by the Act 1. In general these are public sector schemes and are listed in the Schedule to the Preservation of Benefits Regulations, 2002 (SI 279/02) Service by an employee does not constitute qualifying service in certain instances including: - where an employee is a scheme member for death-in-service only benefits - where an employee is a member of a scheme which is not approved by Revenue (unless the scheme is a public sector scheme) A refund of a member s contributions is not permitted on leaving service for any period for which a preserved benefit under the Act is provided. Continuity of service To determine whether an employee has the requisite two years service to qualify for a statutory preserved benefit under the Act, account is taken of: - any period of prior service with a previous employer of whose pension scheme the employee was a member and; - from which pension scheme a transfer value has been received into the current scheme to provide retirement benefits for the employee An example of the above would be where an employee works for employer X for three years and was included in that employer s pension scheme for retirement benefits for a period of three years. The employee is made redundant and subsequently commences employment with employer Y and joins the company pension scheme for retirement benefits. The employee exercises his or her option to have the transfer value of his or her accumulated pension fund paid to employer Y s pension scheme from employer X s pension scheme. 1 From

3 The employee leaves the employment of employer Y one year later with an entitlement to a statutory preserved benefit from employer Y's pension scheme as even though his or her service with employer Y is less than two years, the scheme service completed by the employee with employer X is taken into account in determining whether the qualifying service requirement is fulfilled. The transfer does not have to take place directly following the termination of employment with the first employer. If the employee were to, for example exercise his or her option to transfer his or her fund to a buy-out-bond and at a later stage join an employer where an occupational pension scheme is in place and where the trustees are willing to accept a transfer of the proceeds of the buy-out-bond, the earlier period of service with the first employer must be taken into account in determining whether the member qualifies for a preserved benefit if he or she subsequently leaves the employment to which the second scheme applies. Special provisions apply in situations in which an employee has had periods of service in more than one scheme relating to the same employment. Generally speaking, such an employee is entitled to an aggregate preserved benefit which is no less than the aggregate preserved benefit to which he or she would have been entitled if his or her periods of reckonable service in the various schemes had each related to different employments. Trustees obligations on termination of relevant employment Under Article 14 and Schedule E, Occupational Pension Schemes (Disclosure of Information) Regulations, 2006 (SI 301/2006) certain information on the benefits under an occupational pension scheme must be made available by scheme trustees to an employee on request while in relevant employment and when relevant employment terminates. It is often the case in many smaller schemes that the employer acts as the trustee and employers in such circumstances should be mindful of the obligations the Act places on them in their capacity as trustees. Such information is generally set out in a leaving service options letter prepared by the administrator of the scheme. For defined contribution schemes the letter should contain: - the value of the accumulated contributions paid by or on behalf of the member; - a full explanation of the rights and options available to the member on leaving service; - whether and in what circumstances a refund of contributions is available, how such refund would be calculated and an estimate of the amount, if any; - whether any transfer value is available and if so, an estimate of the transfer value and the accrued rights to which it relates; - the procedures for claiming benefits; - if a transfer value has been paid by the trustees without the consent of the member the name and address of the scheme or life company to which the benefit has been paid For defined benefit schemes the letter should contain: - the amount of preserved benefit to which the member is entitled under the Pensions Act and in accordance with the rules of the scheme; - the amount of any other benefits payable under the rules of the scheme - the date or dates on which such benefits become payable; - whether there is an option to have alternative benefits payable immediately, with details of same;

4 - the provision for increases in such benefits and the extent to which increases are discretionary. If there is no provision for increases this must be stated Under Disclosure of Information Regulations, this information should be automatically provided to the member who leaves service with a preserved benefit within two months of leaving service. An employee who has not received leaving service options from the scheme trustees should immediately request same. The scheme trustees are obliged to provide the requested information to the employee within two months of such a request. An employee can also look elsewhere for information about their pension rights and benefits such as their contract of employment, the member s explanatory leaflet which the employee would have received upon being admitted to the pension scheme (which the employee should ensure is current/up to date) and the most recent Annual Benefit Statement. What happens if an employer terminates the pension scheme or the company is liquidated? While an employer most likely has every intention of continuing its pension scheme indefinitely, generally an employer will reserve the right under the rules of the scheme to discontinue or amend the pension scheme at any time. The trust structure means that the assets of the scheme are held separately from the assets of the employer and any contributions to the scheme by the employer and employee are safe from creditors in the event of the liquidation of the company. This is one of the reasons that most pension schemes are set up under trust, and that pension schemes must be set up under trust in order to be approved by Revenue. Entitlement to a preserved benefit also arises where the employment does not terminate, but a scheme ceases to relate to that employment for example a scheme which is wound up and not replaced. In such a case, the trustees are entitled to make a compulsory transfer of preserved benefits to a PRSA, buy out bond or another occupational pension scheme provided, in the case of a defined benefit scheme that the transfer value would not be reduced by reason of the scheme failing to meet the funding standard 2. The employer may not exercise any charge or lien on a member s preserved benefit, even if a debt to the employer arises out of a criminal, negligent or fraudulent act or omission by the member. Transfer options in respect of preserved benefits Broadly, members leaving service prior to normal retirement age due to redundancy or any other reason can opt to: - keep their accumulated benefits in their former employer s pension scheme for up to two years after leaving service. After two years the trustees can potentially make a compulsory transfer to another arrangement for the individual if the transfer value is less than 10,000 or if the Pensions Board approve an application to make such a compulsory transfer - transfer the value of their accumulated contributions to the occupational pension scheme of a new employer if the trustees of such a scheme are willing and able to accept a transfer - transfer to a Revenue approved policy or contract with an insurance company 2 For details on the funding standard see

5 The Pensions (Amendment) Act, 2002 provides additional options for transfer to: - an unfunded scheme (most public sector schemes are unfunded) where trustees are willing and able to accept the transfer - a PRSA subject to the employee not having had more than 15 years scheme service with the employer whose service they are leaving (or in another scheme related to the same employment or connected employment). Transfer values in respect of AVC benefits can always be transferred to a PRSA, irrespective of the length of scheme service. The provisions on preservation and transfer of benefits are some of the most complex in the Act. A member leaving service should consider their options carefully and seek advice if necessary. Trustees and employers should be aware of the obligations on them to provide accurate and timely options to a scheme member leaving service. For further information please contact Eleanor Keville, Solicitor, Mason Hayes+Curran on ekeville@mhc.ie or The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes+Curran ( is a leading business law firm with offices in Dublin, London and New York. Copyright Mason Hayes+Curran All rights reserved.