Here are some key pointers for employers and trustees where there is a defined benefit scheme and there is M & A activity or dividends paid. Many people have been writing about TPR's new powers and as Dylan would say "come writers and critics who prophesize with your pen". But now it is more than a prophesy, now we are seeing a very substantial increase in corporates notifying trustees of corporate events, now is the time to be ready.
We have listed out some Key Pointers, many of which are echoed in guidance from the Pensions Regulator. The Burges Salmon Pensions Regulatory Team have recently helped and advised on transactions totalling several billion pounds using our Pensions Regulatory Triage Tool. This helps employers and trustees alike and we are receiving daily requests for us to use this tool.
- For corporates - do you have the information available in a manner that will allow the trustees to carry out their own assessment on covenant? For example you might only have group information whereas the trustees may want to know about the impact on a statutory employer or guarantor. On the one hand this might be seen as an issue for the trustees. On the other hand if the trustees cannot be confident of their own assessment then their request for mitigation may have to include an additional margin for prudence.
- Early engagement and real deadlines - what are the actual hard and fast corporate deadlines? - if there are some then there is a real need to allow enough time for the trustees and possibly TPR to review matters. Again, sometimes allowing a short period of time can be seen as advantageous by corporate advisers in the non-pensions world. However here, especially as the trustees may themselves be liable in connection with a lack of due diligence, time will in practice be required.
- A full understanding of the legal obligations and powers under the pensions deed and rules and statute. An understanding of the impact on legal covenant can be just as important as the financial covenant.
- Trustee board experience, governance and conflict management. For example is an independent trustee needed? and if so has one been appointed? Likewise if e.g. subcommittees are needed to address conflict have these been set up? and what are their terms of reference?
- Jurisdiction - have international issues been checked? have they been updated since Brexit?
- Communications and Planning - are there clear lines of communications between the parties? Are any of the discussions delegated to smaller groups? is there a clear project plan in place?
- Precedent - are the proposals tried and tested? If they are novel what are the new aspects and what matters of pensions policy might relate to them?
- Member Comms - consideration of comms to members is important. This can be especially so where there is an overlap between scheme members and the workforce. Has there been full consideration of the relationship between pensions and employment issues?
In short "come gather 'round people, wherever you roam
And admit that the waters around you have grown ...for the times they are a-changin'".