We recently published a legal brief on the new EU (Supplementary Pensions Rights) Regulations 2019 ("the Regulations") which came into force on 13 September 2019. This publication can be accessed here.
In the brief we indicated that guidance was required from either the Department of Employment Affairs and Social Protection or the Pensions Authority to address certain issues identified in the Regulations. The Pensions Authority have now published such guidance.
Application of the Regulations
Notwithstanding that the Regulations do not specify this, the Pensions Authority states that the Regulations do not apply to schemes that are closed to new entrants.
Outgoing Workers
The Pensions Authority also indicates that there are “incoming” as well as “outgoing” outgoing workers. Trustees therefore need to determine at point of entry whether a new member is an outgoing worker. The guidance note states that such a determination should be made both:
at the point that the employee commences service; and at the point that the employee leaves service. In the case of an employee who is commencing service, the Pensions Authority has stated that employers should ask:
a) whether the employee’s most recent previous employment was as an employee in another EU member state, as an active member of a supplementary pension scheme; and
b) if so, for evidence of that.
Notably, the Pensions Authority has stated that an “incoming” outgoing worker will acquire all of the special rights granted to outgoing workers under the Regulations, including the leaving service rights. This means that if the relevant member leaves the scheme and stays resident in Ireland, he still gets the special leaving service rights.
Trustees must also deal with “outgoing” outgoing workers, who are members who only acquire mobile status after they leave service.
On leaving service, the guidance note states that the trustees of the scheme should ask the relevant member:
a) whether they are leaving the employment to take up employment in another EU member state; and
b) if so, for evidence of that (eg a letter from their new employer).
The guidance note also states that where a member is leaving service but not immediately taking up new employment the trustees should take appropriate steps to ascertain whether they later become an outgoing worker such as by following up with the relevant member at regular intervals. This seems unrealistic.
Cash-Out of Employer Contributions
The guidance note clarifies whether employer contributions are to be included in the cash payment due to a short serving outgoing worker.
In the case of a defined benefit scheme, the outgoing worker is entitled to a refund of their own contributions only.
In the case of a defined contribution scheme, the outgoing worker is entitled to a cash payment which includes both employer and employee contributions. This is different to the position in a number of other EU member states, and does not appear to be required by the Directive.
Tax Compliance
The Pensions Authority refers to the potential for this to give rise to a conflict with Revenue rules, but state that this is a matter for individual trustees to address with the Revenue. It would obviously be helpful if the Revenue issued a general ruling on this point.
Equal Treatment
The Pensions Authority also refers to the possibility that granting special treatment to outgoing workers could amount to a breach of the principle of equal pensions treatment. This seems unlikely in practice, but it is wholly unsatisfactory that the Regulations impose a duty on trustees under one part of the Pensions Act which might conflict with trustees’ duties under another part of the Pensions Act.
The Regulations should be amended to exempt compliance with outgoing worker provisions from the equal treatment provisions of the Pensions Act
Conclusion
The guidance note is helpful in clarifying aspects of the Regulations, but it also serves to highlight several problematic implementation issues created by the Regulations as currently promulgated.
