My employers (the company directors) since December 2003 put the company into administration in July 2011 and then continued trading as a partnership after agreeing a purchase back from the administrators. Myself and other employees (8 in total) were advised by the ex directors that our employment rights were being transferred under a TUPE arrangement. I received a letter from the Administrators advinsing them that they weren't being treated as creditors despite the fact that several month's salary remained unpaid.I have discovered today that no payments were made into my pension scheme since 25/09/2009. Unfortunately the principal partner died from a heart attack in March 2012. This leaves the partnership with a single partner who has advised me by email that the new partnership has no obligation to compensate me for lost pension contributions and that also the new parthnership will not be providing a pension scheme.I have written to the Administrators advising them of the pension scheme discrepancies and asking them what if anyting they are likely to do about the situation. I iunderstand that there is a government backed scheme which may provide compensation of sorts. I am 63 years old and approaching retirement in 21 months time so I'm oviously concerned by the loss of pension contributions. I have no contract of employment with the previous company although I have been paid monthly by them since December 2003 and have also received at lest two full years of pension contributions in that time. Additionally I was recently advised that the new partnership was looking to save money by cutting costs. My annual salary since December 2003 is £72000 plus £6000 pa car allowance plus my pension contributions of £14400 per annum. I suggested that I may possibly cut my hours to 4 days per week and thius take only 80% of my salary. Discovering the loss of pension contributions has made me rethink my position. What advice can you offer?
Province/Country relating to question: UK
I've written (emailed) the Administrators but not yet received any response.I have prepared a respsonse to the current partner in charge stating my position but have not yet sent that response.
Hello,I will do my best to help you with this.I am sorry to hear about this. Can you confirm whether there is any money in the pot in respect of the Administration of the Company? Is there likely to be a dividend to creditors when the Company is liquidated?John
I have no knowledge iof any money in the pot so I don't think anything will be forthcoming from the Administrators. I believe that the ex-directors have agreed to collect some outstanding monies on behalf of the Administrators for which they will receive a percentage (20%). There was a large tax bill owing (£270K) but also a large £260K refund due from HMRC in respect of VAT. There was also a considerable load outstanding to the bank (£600-700K).
I have emailed the administrators on two occasions but still haven't had any response. Are they duty bound to respond even thiugh my employment has been TUPE'd to the new partnership?
AlanThe situation here is that, as you have been TUPEd to the new partnership, you are employed by the new partnership on the same basis as you were by the company in administration. That means that you are employed on the same terms and conditions and with the same benefits, including your pension provision if that is what was agreed previously.Thus, you have no involvement in the Administration in terms of salary. If you are owed wages by the company, it is now the partnership which owes you those wages. If you are owed pension contributions, it is the new partnership which owes those contributions. It is as if you have always been employed, since 2003, by the new partnership. So, in answer to your question, the Administrators do not need to correspond with you because your rights have not been affected legally by the administration. You have continuity of employment since 2003 and thus have significant protection. You say you have no employment contract but you have, it is just not written. The Court would imply an employment contract and would try to establish its terms by getting your oral evidence as to those terms, e.g. what pay and benefits have been agreed over the years. I can tell you know that, from what you have said, an employment tribunal would 'go to town' on this new partnership. If you brought a claim, the new partnership would be ordered to pay your unpaid wages and pension contributions and ordered to pay pension contributions moving forward. Please rate me OK SERVICE or above so that I am credited for helping you and I will gladly answer your follow up questions.Best wishesJohn
Solicitor and Advocate
Manyb thnaks for your opinion John. I now feel I have enough information to re approach the new partnership with my claim.Alan
You are welcome Alan, all the very best with this. John
I sopke with the remaining partner who has been told that pesnions are outside the scope of TUPE. is this the case?
Hi AlanThat used to be the case, before April 2005. However, since then pension rights have transferred with the transfer of your employment. So, if you were a member of an occupational pension scheme previously, you have the right to be provided with membership of an occupational pension scheme with the new employer and that includes the right to receive significant employer contributions. John
John, I've now ascertained that the pension was a Group Personal Pension. I have copies of emails sent to me (dated April 2010) but never received from the Pesnion Plan manager at BlackTower Financial Management detailing that the plan was paid up and no contributions had been made since September 2009. I spoke with the remaining Partner yesterday and was informed that there was no way the lost contributions would be made by the new partnership but that a pension plan will be put in place (no timeline available) and that a contribution of 5% or 6% would be made by the partnership. Should I demand the pension contributions are back-dated to July 2011 when the partnership tokk over from the limited company?
I hve thrown the missing contributions problem back at the Administrators but was told by the Partner yesterday that the old limited company has no money. Is it possible I may qualify under the givernment scheme for some or all of the 22 months of missing contributions?
Hi AlanAs a minimum, you should demand that payments be made from July 2011 but I would go further if I were you. You are entitled to the contributions going back to September 2009 and I would be asking for those as well.Your new employer may object but they have absolutely no grounds for doing so and you would be successful at a tribunal if you brought a claim in respect of the missing contributions. Regarding the old company, I do not think that the lack of monies is relevant. I say that because the obligation to pay has transferred to the partnership. The partnership may have a claim to recover from the old company what they have to pay to you in terms of missing contributions upto July 2011. That is a problem for the new partnership though, not for you and the government scheme is therefore not applicable. We both know that the reality here is that the people behind the old company have sunk that ship in order to avoid their liabilities. Unfortunately for them, TUPE gives you strong protection and they are now in the place of the old company as far as you are concerned. Don't give them an easy ride, Alan!Best wishesJohn
Thank you John. Unfortunately I can't rate your answer. Every time I do so I get a page displayed stating "Sorry you don't have access to this page".
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