TUPE transfer and pension rights

uptomyeyeballs

My employer is currently trying to change our pension scheme from a DB to DC. Nothing has yet been agreed, but in the coming months, offers will be made. A straw poll by our Works Council has resulted in a 100% rejection of a preliminary suggestion. Long way to go,

BUT

In parallel to this, my employer has made a joint venture agreement with another company. The existing company will be split, with some of the employees working for the JV, and others (me included) staying outside of it. For each of these options, a new legal entity will be created, and we've been told we'll be transferred into one or the other, by TUPE. However, both the old and new companies will still ultimately have the same parent/lineage. The existing company we now work for will then have no employees and no assets (they'll be transferred into the two new ones).

I'm concerned we'll lose our early retirement option and other rights/privileges associated with it. Does the new company name count as a new employer when all that has changed is the name of the legal entity? The sponsor of our current DB scheme is the 'empty shell' company. Is this legal when it has no assets? Surely that will have to change. Will this have to result in a winding up of our current DB scheme?

Sobryma

I am not too sure on how if you are transferred from one wholly owned subsidiary to another wholly owned subsidiary TUPE would apply [as there is no change in ownership even up the chain] although an employer can always consult about a general change to terms and conditions.

Take the following with a pinch of salt.

TUPE provides limited protection on transfer as regards pensions, there is a requirement to fund a replacement but the contribution levels are limited (6% matching from employer if I recall correctly).

In the case of redundancies you may be able to claim from the new employer that you would get enhanced pension payout from the previous pension scheme (Beckman v Dynamco Whicheloe Macfarlane Ltd).

You under current case law may be able to claim for the loss of early retirement; in our case if the employer grants early retirement, the DC scheme allows retirement on full pension. We have been advised that the new employer is required to bridge the period from early retirement until normal retirement age [but not the shortfall from normal retirement age]. (Proctor and Gamble vs SCA).

TUPE isn't that great to be honest on pensions; the new employer must state they need to undertake measures and in what areas.