43.—(1) Subject to paragraphs (2) and (7), an earner’s employment shall be treated as having ceased to be contracted-out employment when any of the following circumstances applies—
(a)the earner’s contract of service has expired or been terminated;
(b)in the absence of a contract of service, the service itself has ended;
(c)the cancellation or surrender of the contracting-out certificate by virtue of which his employment was contracted-out employment has taken effect, except in a case where, within 6 months of the cancellation or surrender, or such longer period as the Department may allow in a particular case, he becomes a member in contracted-out employment of another contracted-out scheme under the same employer to which his accrued rights to guaranteed minimum pensions, section 5(2B) rights or his protected rights, as the case may be, are transferred;
(d)a variation of the contracting-out certificate by virtue of which his employment was contracted-out employment has taken effect such that the certificate no longer applies to his employment, except in a case where, within 6 months of the variation, or such longer period as the Department may allow in a particular case, he again comes within the description of earners in relation to which the said contracting-out certificate applies or he becomes a member in contracted-out employment of another contracted-out scheme under the same employer to which his accrued rights to guaranteed minimum pensions, section 5(2B) rights or his protected rights, as the case may be, are transferred;
(e)the earner has ceased to be within the description of earners in relation to which the contracting-out certificate applies or has ceased to be a member of the scheme, except in a case where, within 6 months of the ceasing, or such longer period as the Department may allow in a particular case, he again comes within the description of earners in relation to which the said contracting-out certificate applies or he becomes a member in contracted-out employment of another contracted-out scheme under the same employer to which his accrued rights to guaranteed minimum pensions, section 5(2B) rights or his protected rights, as the case may be, are transferred, and
(f)the earner’s employer dies or disposes of the whole or part of his business so that the earner ceases to be employed by that employer and the contracted-out employment is not, or cannot be, treated as continuing under the new employer under paragraph (5).
(2) In such cases as are specified in paragraph (3), an earner’s employment shall not be treated as having ceased to be contracted-out employment by reason only of the circumstances mentioned in paragraph (1)(a) and (b) where the service in question is one (other than the last) of a series of employments to all of which the same scheme applies.
(3) The cases mentioned in paragraph (2) are—
(a)where all the employments are with the same employer or where the earner is employed by another employer in employment which is contracted out by reference to the same scheme as the first employment and, in respect of the employment first mentioned in paragraph (2)—
(i)no state scheme premium or contributions equivalent premium has been paid or any that has been paid has been refunded;
(ii)the calculation of the earner’s guaranteed minimum pension arising out of his service in that employment is not subject to any provision of the scheme prescribed by regulations made under section 12(3) of the Act(1);
(iii)the earner’s accrued rights to guaranteed minimum pensions or to section 5(2B) rights under the scheme arising out of his service in that employment have not been transferred in accordance with the provisions of the scheme under section 8C(1) or 16(1) of the Act or regulations made thereunder or, as the case may be, effect has not been given to protected rights under the scheme arising out of his service in that employment by the making of a transfer payment in accordance with the provisions of the scheme under section 24(2)(b)(i) of the Act;
(iv)the scheme is one for which there is a common fund,
and any interval between one employment and the next is no longer than 6 months or such longer period as the Department may allow in a particular case, and
(b)where a woman has a right to return to work under Article 20 of the Industrial Relations (No. 2) (Northern Ireland) Order 1976(2) (right to return to work following pregnancy or confinement) and does in fact return to work pursuant to that right.
(4) The total period of contracted-out employment which consists of a series of employments to which paragraph (2) applies shall not include any interval between employments.
(5) In cases where an earner’s employer dies or otherwise ceases to be the employer in relation to the earner’s contracted-out employment and his business is taken over by a new employer, the earner’s service in contracted-out employment under the old employer may be treated as continuing under the new employer if—
(a)the earner’s service after the change of employer continues to qualify him for guaranteed minimum pensions, section 5(2B) rights or protected rights, as the case may be, under the contracted-out scheme by virtue of which he qualified for such benefits or such rights before the change, or if his service does not so qualify him the earner is nevertheless to be treated as being in contracted-out employment by virtue of regulation 28;
(b)the new employer accepts all the responsibilities of the former employer for any contributions to the scheme and any state scheme premiums or contributions equivalent premiums which are outstanding in respect of the scheme at the time of the change, and
(c)the new employer notifies the Department of the change within one month of its taking place or such longer period as the Department may consider reasonable in the particular case and provides the Department with such documents and information as it may reasonably require.
(6) In a case where an earner’s service in contracted-out employment is to be treated as continuing by virtue of paragraph (5) the contracting-out certificate issued to the former employer shall be treated as issued to the new employer and the Department may vary that certificate in such respects as may be necessary in the circumstances.
(7) In cases where an earner is employed concurrently in two or more contracted-out employments by reference to the same scheme and with the same employer his employment in any one of those employments shall not be treated as having terminated by reason only of the circumstances mentioned in paragraph (1)(a) and (b) until all such employments are treated as having so terminated.
(8) Where an earner ceases to be liable for Class 1 contributions under the Contributions and Benefits Act in respect of any contracted-out employment because he is employed outside Northern Ireland and where, and for as long as, service in the employment outside Northern Ireland continues to qualify him for benefits under the scheme by reference to which his employment was contracted-out employment, the earner’s service in that employment shall be treated as not having terminated.
(9) In this regulation—
“common fund” means a fund into which all contributions, however derived, are paid, and to the whole of which recourse may be had to meet any liabilities of the scheme for the payment of benefit;
“holding company” has the same meaning as in regulation 12(2);
“state scheme premium” means a premium paid or payable under Chapter III of Part III of the Act before the principal appointed day, or under those provisions as continued in force by an order made under Article 1 of the Order.
Section 12(3) was amended by paragraph 21(a) of Schedule 3 to the Pensions (Northern Ireland) Order 1995
S.I. 1976/2147 (N.I. 28); Article 20 was substituted by Schedule 1 to the Industrial Relations (Northern Ireland) Order 1993 (S.I. 1993/2668 (N.I. 11))