Employer never auto-enrolled me in a workplace pension, now I'm leaving the company. What to do?

lizzie201296

Re-posting this here:

Hi
I'll try to keep this simple, but would appreciate any advice as I am completely clueless!
I started my current job in July 2019 (aged 22). I asked about pensions when I joined but was told it was 'all being taken care of' so didn't follow up for a while (I know, more fool me). Over the following months I kept asking, but kept getting brushed off (I'm very clueless about the regulations around these things, my boss took advantage of that and I'm one of only two employees they have, so I didn't get very far...). I am now leaving the company to start a new job elsewhere (at a more legitimate company...!).

So my question is, what should I do about all of this? As far as I understand, by law the company should have auto-enrolled me in a workplace pension when I joined and for the last 14 months we both should have been contributing to this (I think it's 5% from me and 3% from them?). I did the maths on the pension regulator website and I'm basically 'short' around £2k (as in, this should have been going into my pension fund for the last year). I got in touch with the pensions regulator multiple times over the year to report the bosses but they basically replied and said they'd 'look into it when they could' - ie. we're too small a company, and they're busy! Obviously I would have liked this money to have been going towards my pension over the last year, but I'm not sure if my boss can make a 'mass payment'? I imagine I would also be required to pay in a lump sum myself to make up for the last year of missed payments, which I can't really afford to make in one go. However, as my boss has (I believe?) broken the law... is he even going to be able to 'fix it' after a year of no payments?

Basically.. what are my options here, what can/should I do? As I say, I have raised this with the regulator but they aren't being very helpful and keep telling me to discuss it with my HR department etc, which we don't have. My boss is basically a terrible businessman which I realise now, hence why I'm leaving..but I just want to know if there is any way of getting 'back' that money into my pension fund after over a year of missed payments? Has anyone got any experience of this or ideas about what to do?

Thanks!

gm0

Options:

1) Chalk it up to life experience gained

2) Letter to formalise the ask + deadline for response before further action.  Then get lucky or give up but a bit later.

Escalation

3) If no result then tell your failed autoenrollment and wouldn't put it right when given the chance story to the consumer financial journalists in the papers.  Always need grist for their articles. Name and shame. Also Glassdoor etc.  Fact based to avoid libel/slander issues.  The responses from the regulator are also helpful "colour" for that story.

4) Legal route:

https://www.moneysavingexpert.com/reclaim/small-claims-court/

The last option is the only kind of legal action with costs that are even vaguely proportionate to the loss  / missing pay. i.e the single day, under 10k small claims route.

There are up front costs for you + your time and lost earnings to attend on the day.  And winning doesn't mean they will pay.  Courts take a dim view of non-payers eventually. But it all takes a long time to get through the process and longer if they ignore and won't pay.  Especially in 2020.   And a rogue cycles their ltd companies every few years via pre-pack administration to shed past liabilities, warranties and debt and issues like this.  And then it becomes unrecoverable.  So sorry.  Wasted your money on the claim.

Small claims could (perhaps) work if you have contractual or other paperwork/emails from them promising a pension and likely not if its just your recall of verbals and discovery they were delinquent in setting up a scheme when they first added employees but it was on the never never and not actually in the contract (yet) and not setup (yet).  Once a no evidence argument starts about when it should have happened by - you are swiftly out of small claims court territory and in practice back to square one.

Someone with actual experience of similar cases may happen along and clarify whether this has legs in small claims.  It's not referred to on the MSE pages.

I'd vote for option 2.  The time to carefully write a letter requesting they rectify the oversight and omitted pay. And cost of a registered delivery. (Useful for 4 if you ever get there to prove it happened).

Dox

Plenty of options in the post above, but none of them the best and easiest! Free, expert help from TPAS: https://www.pensionsadvisoryservice.org.uk

Talk to them and then take it from there - although in the meantime you might like to brush up(!) on your knowledge of what your employer should have been doing: https://www.nestpensions.org.uk/schemeweb/nest/employers/get-ready-for-auto-enrolment/contributions.html

Sailtheworld

You can go straight to the Pensions Regulator
https://forms.thepensionsregulator.gov.uk/employer-non-compliance-with-workplace-pension-duties/?_ga=2.35516518.633061715.1600178519-1686336063.1600178519

nigelbb

Dox said:

Plenty of options in the post above, but none of them the best and easiest! Free, expert help from TPAS: https://www.pensionsadvisoryservice.org.uk

Talk to them and then take it from there - although in the meantime you might like to brush up(!) on your knowledge of what your employer should have been doing: https://www.nestpensions.org.uk/schemeweb/nest/employers/get-ready-for-auto-enrolment/contributions.html

The OP wrote "I got in touch with the pensions regulator multiple times over the year to report the bosses but they basically replied and said they'd 'look into it when they could' - ie. we're too small a company, and they're busy!"

nigelbb

Sailtheworld said:

You can go straight to the Pensions Regulator
https://forms.thepensionsregulator.gov.uk/employer-non-compliance-with-workplace-pension-duties/?_ga=2.35516518.633061715.1600178519-1686336063.1600178519

The OP has already done this "I got in touch with the pensions regulator multiple times over the year to report the bosses but they basically replied and said they'd 'look into it when they could' - ie. we're too small a company, and they're busy!"

lizzie201296

Hi all.
Thank you so much for the responses!
SO, this is the response from the pensions regulator:
'As you may already be aware, we are unable to give feedback on the outcome of any assessment or investigation (if one is conducted) due to legal reasons.

With that in mind, if this matter remains unresolved with your employer, I would suggest contacting the Pensions Ombudsman. Their role is to help resolve complaints and disputes regarding pension administration.'

I will contact the ombudsman but just want to be absolutely sure of my facts first (ie. am I definitely in the right here), so I will get on to TPAS first and see what they say.

I guess what I'd really like to know is what are the actual routes to resolve this? Say I raise it formally with the employer and essentially threaten legal action, can he actually 'put it right' at this stage? Ie. can he 'fix' over a year's worth of missed pension contributions, and would this mean me having to make a massive lump sum payment? Ultimately, while I am really angry at not having been enrolled etc and would like it fixed, if it's going to mean me having to pay in over a grand in one go, it's not really an option for me at the moment. So before I start going the forma/legal route, does anyone know what the course of action would be if my employer just agrees to 'fix it' at this stage? What would that look like for him, and for me?

Thank you!

lizzie201296

gm0 said:

3) If no result then tell your failed autoenrollment and wouldn't put it right when given the chance story to the consumer financial journalists in the papers.  Always need grist for their articles. Name and shame. Also Glassdoor etc.  Fact based to avoid libel/slander issues.  The responses from the regulator are also helpful "colour" for that story.

Also I don't think anyone from a journalist point of view would be interested in this, the company is a tiny very niche company with only a couple of employees. It's also a very small industry where everyone knows everyone, so while yes I could name and shame them I would worry that if it were to backfire in any way, they could really go after me and I don't really want to be caught up in some public dispute that my whole network would be aware of! All that about not burning bridges... if possible I want to resolve this privately and as amicably as possible but with the gentle threat of 'if you don't sort this out I will take you to court'. And then hope I don't actually have to take them to court because I can't afford that!

lizzie201296

gm0 said:

Small claims could (perhaps) work if you have contractual or other paperwork/emails from them promising a pension and likely not if its just your recall of verbals and discovery they were delinquent in setting up a scheme when they first added employees but it was on the never never and not actually in the contract (yet) and not setup (yet).  Once a no evidence argument starts about when it should have happened by - you are swiftly out of small claims court territory and in practice back to square one.

It is in my contract that I signed when I joined the company that I would be enrolled in the company pension scheme - would this help me? Or at least give me a strong argument if I raised it formally with the employer (ie. 'as it's in my contract, by not providing it you have breached contract, therefore I could take you to court if you don't fix this')?

Thrugelmir

The employer is liable for the contribution they would have made to a scheme. The fact that you've made no contributions is of no relevance now. Have you had a face to face conversation as to how your employer will rectify the shortfall?  Perhaps mention in passing that unless there's rectification that you'll take legal action. 

pip895

My thoughts are - are your former employers solvent- presuming they are, the reason the pension never got set up is probably because it was hassle - maybe the one other employee wasn't bothered.  Your best bet is to give them an easy way out - might be worth while talking to the pensions people at your new company and see if your former employer could pay in a lump sum directly (their 3%).  You could then up the percentage you put in monthly and pay off your shortfall over time.  Use the threat of the small claims court if they don't sort things out - they will probably take the path of least resistance.