The recent Pensions Regulator guidance highlights the vital need "as soon as possible" for pensions schemes with any overseas connection to review and take action, the consequences of not doing so can be severe. (Link below)
There are a wide range of circumstances that need to be considered. These include a key issue in respect of the PPF - namely the potential loss of ability to enter the PPF.
As clear from TPR, this is not a matter that can be left until the end of this year as (a) structural changes to protect your scheme may take time and (b) If there is a risk that an employer is distressed, the chance of required changes being made could likely diminish over time, especially if the financial circumstances of the employer worsen.
On the Potential loss of ability to enter the PPF, As TPR comments, on a no deal Brexit, EU insolvency proceedings in respect of a sponsoring employer will not be automatically recognised. As such PPF protection can be lost.
We have seen this risk re overseas employers on numerous cases. Also, even though your overseas employer might have some presence in the UK, this does not necessarily mean that your scheme will be able to benefit from PPF entry.
As set out in the Olympic Airlines case, the question of sufficient presence in the UK is a complex legal one including the need for a review as to whether the presence by the employer is sufficiently established in the UK to be situated here for UK insolvency purposes. This includes the location of staff, the nature of their physical presence and the nature of their outward facing activity.
Indeed remote working with more and more of the employer representatives dialing in from overseas could further compound the risk of a lack of necessary UK presence and consequent loss of ability to enter the PPF.
Also, the existence of just one overseas employer in a multiemployer scheme can cause real difficulties for PPF entry, depending on the rules of the scheme and timing of any insolvencies.
The cross border guidance also covers several other areas that need to be considered in case there is to be a no deal Brexit, including:
- Assessing whether you can continue to pay into your EEA cross-border pension scheme
- Assessing whether you can continue to use your cross-border pension scheme for your automatic enrolment duties.
In this complex area the need to act now is key.
The main change that will be made to PPF entry in the event of a no-deal Brexit is that EU insolvency proceedings in respect of a sponsoring employer will not automatically be recognised. Such an employer will instead need to trigger the requirement for a qualifying insolvency event in order to assume PPF protection.