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The Employment Equality (Age) (Amendment No. 2) Regulations (Northern Ireland) 2006

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Statutory Rules of Northern Ireland

2006 No. 453

AGE DISCRIMINATION

PENSIONS

The Employment Equality (Age) (Amendment No. 2) Regulations (Northern Ireland) 2006

Made

13th November 2006

Coming into operation

1st December 2006

The Department for Social Development, being a Department designated(1) for the purposes of section 2(2) of the European Communities Act 1972(2) in relation to discrimination, makes the following Regulations in exercise of the powers conferred by that section.

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Employment Equality (Age) (Amendment No. 2) Regulations (Northern Ireland) 2006 and shall come into operation on 1st December 2006.

(2) The Interpretation Act (Northern Ireland) 1954(3) shall apply to these Regulations as it applies to an Act of the Assembly.

Amendment of the Employment Equality (Age) Regulations

2.—(1) The Employment Equality (Age) Regulations (Northern Ireland) 2006(4) shall be amended in accordance with the paragraphs (2) to (3).

(2) In regulation 12 (pension schemes)—

(a)in paragraph (1) for “service” substitute “pensionable service”, and

(b)in paragraphs (1) and (2) after “trustees or managers of” in each place insert “, or any employer in relation to,”.

(3) In Schedule 1 (pension schemes)—

(a)in paragraph 1 (interpretation)—

(i)in sub-paragraph (4) for “paragraphs 12, 13 and 30” substitute “paragraphs 3A, 7(b), 9, 15A, 17 to 21, 23, 24, 25, 25A and 30”;

(ii)in sub-paragraph (6)—

(aa)after the definition of “active member” insert—

“additional state retirement pension” means the additional pension in the Category A retirement pension within the meaning of sections 44 and 45 of the 1992 Act(5);

(bb)after the definition of “age related benefit” insert—

“basic state retirement pension” means the basic pension in the Category A retirement pension within the meaning of section 44 of the 1992 Act”;

“block transfer” means a transfer in a single transaction or a series of transactions from a scheme of all the sums and assets held for the purposes of, or representing, or derived from—

(a)

all accrued rights under a scheme,

(b)

contracted-out rights, or

(c)

rights which are not contracted-out rights,

relating to a period of continuous pensionable service (or pensionable service which is treated as continuous) or one or more of a number of separate periods of such pensionable service which relate to a member and at least one other member;

“contracted-out rights” are such rights, under or derived from an occupational pension scheme or an appropriate personal pension scheme as fall within the following categories—

(a)

entitlement to payment of, or accrued rights to, guaranteed minimum pensions,

(b)

protected rights, or

(c)

section 5(2B) rights,

but not safeguarded rights (within the meaning of section 64A of the 1993 Act(6));;;

(cc)in the definition of “death benefit” for “pension scheme” substitute “scheme”;

(dd)in the definition of “dependant” after “means” insert “a widow, widower or surviving civil partner or a”;

(ee)for the definition of “early retirement pivot age” substitute—

“early retirement pivot age” means, in relation to age related benefit provided under a scheme, an age specified in the scheme rules (or otherwise determined) as the earliest age at which entitlement arises—

(a)

without consent (whether of an employer, the trustees or managers of the scheme or otherwise), and

(b)

without an actuarial reduction,

but disregarding any special provision as to early payment on grounds of ill health or otherwise;;;

(ff)omit the definition of “employer contribution”;

(gg)after the definition of “employment” insert—

“guaranteed minimum pension” has the meaning given in section 4(2) of the 1993 Act(7);

(hh)in the definition of “late retirement pivot age” after “scheme rules” insert “(or otherwise determined)”;

(ii)after the definition of “late retirement pivot age” insert—

“lower earnings limit” means the amount specified for the tax year in question in regulations made under section 5(1)(a)(i) of the 1992 Act (earnings limits and thresholds for Class 1 contributions)(8);;

(jj)omit the definition of “member contribution”;

(kk)omit the definition of “pensionable age”;

(ll)at the end of the definition of “pensioner member” omit “and”, and

(mm)after the definition of “prospective member” add—

“protected rights” has the meaning given in section 6 of 1993 Act(9);

“redundancy” means being dismissed by reason of redundancy for the purposes of the Employment Rights (Northern Ireland) Order 1996(10);

“relevant transfer” has the meaning given in—

(a)

regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (interpretation)(11), or as the case may be,

(b)

regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (interpretation)(12);

“section 5(2B) rights” are—

(a)

rights to the payment of pensions and accrued rights to pensions (other than rights attributable to voluntary contributions) under a scheme contracted-out by virtue of section 5(2B) of the 1993 Act (requirements for certification of schemes: general)(13), so far as attributable to an earner’s service in contracted-out employment on or after 6th April 1997, and

(b)

where a transfer payment has been made to such a scheme, any rights arising under the scheme as a consequence of that payment which are derived directly or indirectly from—

(i)

such rights as are referred to in paragraph (a) under another scheme contracted-out by virtue of section 5(2B) of the 1993 Act, or

(ii)

protected rights under another occupational pension scheme or under a personal pension scheme attributable to payments or contributions in respect of employment on or after 6th April 1997; and

“upper earnings limit” means the amount specified for the tax year in question in regulations made under section 5(1)(a)(iii) of the 1992 Act.;

(iii)omit sub-paragraph (7), and

(iv)in sub-paragraph (9) after “this Schedule” add “and “occupational pension scheme” shall mean an occupational pension scheme within the meaning of either section 1(1) of the 1993 Act(14) or section 150(5) of the 2004 Act(15)”;

(b)after paragraph 3 (exception for rules, practices, actions and decisions relating to occupational pension schemes) insert—

Length of service exemptions

3A.(1) Subject to sub-paragraph (2), nothing in Part 2 or 3 of these Regulations shall render it unlawful for—

(a)any rule, practice, action or decision of the trustees or managers (“A”) of a scheme regarding—

(i)admission to the scheme (“admission terms”), or

(ii)the accrual of, or eligibility for, any benefit under the scheme (“benefit terms”),

where the admission terms or the benefit terms put a member (“B”) of the scheme at a disadvantage when compared with another member (“C”) if and to the extent that the disadvantage suffered by B is because B’s length of service with an employer (“D”) in relation to the scheme is less than that of C;

(b)any rule, practice, action or decision of an employer (“E”) in relation to a scheme regarding the admission terms or benefit terms where it puts a member (“F”) of the scheme at a disadvantage when compared with another member (“G”) if and to the extent that the disadvantage suffered by F is because F’s length of service with E is less than that of G, or

(c)any rule, practice, action or decision of an employer (“H”) regarding payment of contributions in respect of a worker (“I”) to a personal pension scheme or to a money purchase arrangement (“contribution terms”) where it puts I at a disadvantage when compared with another worker (“J”) if and to the extent that the disadvantage suffered by I is because I’s length of service with H is less than that of J.

(2) Where B’s, or as the case may be, F’s or I’s length of service exceeds 5 years and a length of service criterion in the admission terms or, as the case may be, the benefit terms or contribution terms puts B or F or I at a disadvantage—

(a)where sub-paragraph (1)(a) applies, A—

(i)must ask D to confirm whether the length of service criterion reasonably appears to D to fulfil a business need of D’s undertaking (for example by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers), and

(ii)may rely on D’s confirmation;

(b)for the purposes of head (a)(i), D must—

(i)calculate B’s length of service;

(ii)provide A with details of B’s length of service, and

(iii)respond to A’s request within a reasonable time;

(c)where sub-paragraph (1)(a) or (b) or (c) applies, it must reasonably appear to D or, as the case may be, E or H that the length of service criterion applies in such a way that it fulfils a business need of his undertaking (for example by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers).

(3) When calculating B’s or, as the case may be, F’s or I’s length of service D or, as the case may be, E or H shall calculate—

(a)the length of time the member or worker has been working for him doing work which he reasonably considers to be at or above a particular level (assessed by reference to the demands made on the member or worker, for example, in terms of effort, skills and decision making), or

(b)the length of time the member or worker has been working for him in total,

and it is for D or, as the case may be, E or H to decide which of heads (a) or (b) to use.

(4) For the purposes of sub-paragraph (3), D or, as the case may be, E or H shall calculate the length of time a member or worker has been working for him in accordance with paragraphs (4) to (7) of regulation 34 (exception for provision of certain benefits based on length of service) and any reference in those paragraphs to—

(a)“A” shall be read as if it were a reference to “D” or, as the case may be, “E” or “H”, and

(b)“worker” shall, where sub-paragraph (1)(a) or (b) applies, be read as if it were a reference to “member”.

(5) For the purposes of this paragraph, a “member” shall include a “prospective member”.;

(c)after paragraph 4 (exception for rules, practices, actions and decisions relating to contributions by employers to personal pension schemes) insert—

Unlawfulness of rules, practices, actions or decisions relating to Part 2 or 3 of this Schedule

4A.(1) The inclusion of a rule, practice, action or decision in Part 2 of this Schedule shall not be taken to mean that, but for the exemption in that Part, the use or maintenance by an employer, trustees or managers of a scheme of the rule, practice, action or decision in relation to the scheme, would be unlawful.

(2) The inclusion of a rule, practice, action or decision in Part 3 of this Schedule shall not be taken to mean that, but for the exemption in that Part, the use or maintenance by an employer of the rule, practice, action or decision in relation to the payment of contributions to a personal pension scheme in respect of a worker, would be unlawful.;

(d)in paragraph 7 (admission to schemes) for sub-paragraph (b) substitute—

(b)a minimum level of pensionable pay for admission where that minimum—

(i)does not exceed one and a half times the lower earnings limit;

(ii)does not exceed an amount calculated by reference to the lower earnings limit where the aim is more or less to reflect the amount of the basic state retirement pension, or

(iii)does not exceed an amount calculated more or less to reflect the amount of the basic state retirement pension plus the additional state retirement pension.;

(e)in paragraph 8 (the use of age criteria in actuarial calculations)—

(i)after “The use of age criteria in actuarial calculations” insert “in a scheme”, and

(ii)in sub-paragraph (b), after “employer contributions” insert “by or in respect of a member”;

(f)in paragraph 9 (contributions)—

(i)after “employer contributions” insert “, to a scheme,”, and

(ii)after “pensionable pay” insert “or, where paragraph 19A applies, different accrual rates,”;

(g)in paragraph 10 (contributions under money purchase arrangements)—

(i)in sub-paragraph (a)(i) for “amount of benefit” substitute “amount of age related benefit in respect of comparable aggregate periods of pensionable service”;

(ii)for sub-paragraph (a)(ii) substitute—

(ii)to make more nearly equal the amount of the age related benefit, in respect of comparable aggregate periods of pensionable service, to which members of different ages who are otherwise in a comparable situation will become entitled under the arrangement;, and

(iii)after sub-paragraph (b) add—

(c)any limitation on any employer contributions in respect of a member or member contributions by reference to a maximum level of pensionable pay.;

(h)after paragraph 11 (contributions under defined benefits arrangements) insert—

11A.  Any limitation on employer contributions in respect of a member or member contributions to a defined benefit arrangement by reference to a maximum level of pensionable pay.;

(i)for paragraphs 12 to 16 (age related rules, practices, actions and decisions relating to benefit) substitute—

12.(1) Subject to sub-paragraph (4), a minimum age for any member of a scheme to be entitled to a particular age related benefit that is paid in accordance with sub-paragraph (2) and is paid—

(a)either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise), and

(b)before the early retirement pivot age relevant to that age related benefit.

(2) The age related benefit must—

(a)be actuarially reduced on the basis that the aim is to reflect that it is paid on a date before the applicable early retirement pivot age, and

(b)not be enhanced by crediting the member with any additional periods of pensionable service or additional benefits.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

(4) Sub-paragraph (1) shall not apply to any member who retires on the grounds to which paragraph 13, 13A or 15 applies.

13.(1) A minimum age for any active or prospective members of a scheme for payment of or entitlement to a particular age related benefit before the early retirement pivot age relevant to that age related benefit where—

(a)the entitlement to the age related benefit at a minimum age applies to a member who is an active or prospective member of the scheme on 1st December 2006;

(b)the age related benefit may be paid, at a minimum age, to the active or prospective member either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise), and

(c)the age related benefit is enhanced in one or more of the ways specified in sub-paragraph (2).

(2) For the purposes of sub-paragraph (1)(c) the specified ways are the enhancement of any age related benefit payable to or in respect of the member calculated in one or more of the following ways—

(a)by reference to some or all of the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b)by reference to a fixed number of years of prospective pensionable service;

(c)by making an actuarial reduction which is smaller than if early retirement had been on grounds to which paragraph 12 applies, or

(d)by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of active or prospective members.

13A.  Paragraph 13 shall continue to apply to any member who after 1st December 2006—

(a)joins a scheme as a result of a block transfer or relevant transfer from a scheme to which paragraph 13 applied;

(b)joins a scheme as a result of a block transfer or relevant transfer from a scheme to which sub-paragraph (a) applied, or

(c)joins a scheme on the basis that it will provide the same benefits as those provided by the scheme to which paragraph 13 applied.

13B.(1) A minimum age for any member of a scheme for payment of or entitlement to a particular age related benefit on the grounds of redundancy where it is enhanced in accordance with sub-paragraph (2) and paid either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise).

(2) The enhancement of any age related benefit payable to or in respect of a member on the grounds of redundancy where the enhancement is calculated in one or more of the following ways—

(a)by reference to the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b)by reference to a fixed number of years of prospective pensionable service;

(c)by making an actuarial reduction which is smaller than if early retirement had been on grounds to which paragraph 12 applied, or

(d)by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

14.  An early retirement pivot age or a late retirement pivot age including—

(a)different such ages for different groups or categories of member, and

(b)any early retirement pivot age or late retirement pivot age for deferred members which is different than for active members.

15.(1) A minimum age for any member of a scheme for payment of or entitlement to a particular age related benefit on the grounds of ill health where the age related benefit is enhanced in accordance with sub-paragraph (2) and paid either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise).

(2) The enhancement of any age related benefit payable to or in respect of a member on the grounds of ill health where the enhancement is calculated in one of more of the following ways—

(a)by reference to some or all of the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b)by reference to a fixed number of years of prospective pensionable service;

(c)by making an actuarial reduction which is smaller than if early retirement had been on the grounds to which paragraph 12 applied, or

(d)by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

15A.(1) The calculation of any death benefit payable in respect of a member—

(a)by reference to some or all of the years of prospective pensionable service a member would have completed if he had remained in service until normal pension age, or

(b)by reference to a fixed number of years of prospective pensionable service.

(2) Payment after a member’s death of a death benefit calculated by reference to the period remaining in a pension guarantee period.

(3) For the purposes of sub-paragraph (2), a pension guarantee period means a fixed period specified in or permitted by the scheme rules beginning on—

(a)the date on which the payment of pension to or in respect of the member began, or

(b)if specified in the scheme rules, the date of the member’s death on or after normal pension age where payment of pension to or in respect of him had not begun.

(4) Any difference between the death benefits payable in respect of deferred members who die before normal pension age and the death benefits payable in respect of deferred members who die on or after normal pension age.

16.(1) Any rule, practice, action or decision where—

(a)the rate of pension to which a pensioner member is entitled is reduced at any time between age 60 and 65 (“the reduction date”), by either—

(i)an amount not exceeding the relevant state retirement pension rate at the reduction date, or

(ii)the rate of the pension in payment where on the reduction date the relevant state retirement pension rate is greater than the rate of that pension;

(b)from the date a member is entitled to present payment of a pension from a scheme he is entitled to an additional amount of pension which does not exceed the amount of the basic state retirement pension plus the additional state retirement pension that would be payable at state pension age, or

(c)a member who reaches his state pension age is not entitled to, or no longer entitled to, an additional amount of pension which does not exceed the amount of the basic state retirement pension plus the additional state retirement pension that would be payable at state pension age.

(2) For the purposes of paragraph (1)—

“relevant state retirement pension rate” has the same meaning as in paragraph 2(5) of Schedule 28 to the 2004 Act(16);

“state pension age” means the pensionable age specified in the rules in paragraph 1 of Schedule 2 to the 1995 Order(17).;

(j)in paragraph 17 (reduction of pension payable to a dependant)—

(i)before “reduction” insert “actuarial”, and

(ii)after “pension payable” insert “from a scheme”;

(k)in paragraph 18 (life assurance cover to ill health retirees)—

(i)after “who have retired” insert “from a scheme”, and

(ii)omit “before any early retirement pivot age”;

(l)in paragraph 19 (differing amounts of benefit attributable to differing lengths of service) for “defined benefits arrangement” substitute “scheme”;

(m)after paragraph 19 insert—

19A.(1) Any differences in—

(a)the fraction of pensionable pay at which any age related benefit accrues, or

(b)the amount of death benefit,

to or in respect of active or prospective members of a scheme where the differences are attributable to the aim specified in sub-paragraph (2).

(2) The aim referred to in sub-paragraph (1) is that members in a comparable situation will have the right to age related benefit or death benefit equal to the same fraction, proportion or multiple of pensionable pay—

(a)without regard to each member’s length of pensionable service under the scheme, and

(b)provided that each member continues in pensionable service under the scheme until normal pension age.

(3) Any differences in age related benefits which accrue, or entitlement to any death benefits which arises, to or in respect of active or prospective members of a scheme who are in a comparable situation where—

(a)those differences are attributable to the aim specified in sub-paragraph (2), and

(b)the member’s pensionable service under the arrangement ceases before normal pension age.

(4) Where sub-paragraph (1) applies, any limitation on the amount of any age related benefit or death benefit payable from a scheme where the limitation arises from imposing one or both of the following—

(a)a maximum amount on the age related benefit or death benefit which is equal to a fraction, proportion or multiple of the member’s pensionable pay, or

(b)a minimum period of pensionable service.

19B.  Where paragraph 19A applies, different rates of member or employer contributions according to the age of the members by, or in respect of whom, contributions are made, where for each year of pensionable service members in comparable situations accrue different fractions of pensionable pay.;

(n)for paragraphs 21 to 24 (other rules, practices, actions and decisions relating to benefit) substitute—

21.(1) Any limitation on the amount of any age related benefit or death benefit payable from a scheme where one or both of sub-paragraphs (2) and (3) apply.

(2) The limitation results from imposing a maximum number of years of pensionable service by reference to which the age related benefit or death benefit may be calculated.

(3) The limitation arises from imposing a maximum amount on the age related benefit or death benefit which is equal to a fraction, proportion or multiple of a member’s pensionable pay.

22.  Any rule, practice, action or decision where any age related benefit or death benefit is only payable from a scheme where a member is entitled to short service benefit under section 67 of the 1993 Act (basic principles as to short service benefit)(18).

23.  When determining a member’s pensionable pay by reference to which any age related benefit or death benefit payable to or in respect of a member is calculated, to exclude from the member’s remuneration an amount which—

(a)does not exceed one and a half times the lower earnings limit;

(b)does not exceed an amount calculated by reference to the lower earnings limit where the aim is more or less to reflect the amount of the basic state retirement pension, or

(c)does not exceed an amount calculated more or less to reflect the amount of the basic state retirement pension plus the additional state retirement pension.

23A.  Any difference in the amount of age related benefit or death benefit payable under a scheme to or in respect of members where the difference is attributable to accrual of age related benefit at a higher fraction of pensionable pay for pensionable pay over the upper earnings limit (and a lower fraction of pensionable pay for pensionable pay under the upper earnings limit) where the aim is to reflect the additional state retirement pension.

24.  Any limitation on the amount of any age related benefit or death benefit payable from a scheme where the limitation—

(a)relates to—

(i)all members who joined, or who became eligible to join the scheme on, after or before a particular date, or

(ii)any group or category of members who joined, or who became eligible to join the scheme on, after or before a particular date, and

(b)results from imposing a maximum level of pensionable pay by reference to which the age related benefit or death benefit may be calculated.;

(o)after paragraph 25 (closure of schemes) insert—

Closure of sections of schemes

25A.(1) The closure of any section of a scheme, from a particular date, to workers who have not already joined it.

(2) For the purposes of sub-paragraph (1)—

(a)a scheme may be divided into two or more sections, and

(b)a section of a scheme shall mean any of the groups in sub-paragraph (3).

(3) A section of a scheme shall mean any of the following—

(a)any group of members who became eligible to join, or who joined, the scheme on, after or before a particular date on the basis that particular benefits will be provided to or in respect of those members or that a particular level of contributions will be paid in respect of those members, or

(b)any group of members who became eligible to join, or who joined, the scheme as a result of a block transfer or relevant transfer.;

(p)in paragraphs 27 and 28 (other rules, practices, actions and decisions) after “different rates is to maintain” in both places insert “or more nearly maintain”;

(q)in paragraph 30 (registered pension schemes)—

(i)in sub-paragraph (1)—

(aa)omit “Subject to sub-paragraph (2),”, and

(bb)before “registered pension scheme” insert “scheme which is a”, and

(ii)omit sub-paragraph (2);

(r)in paragraph 31 (contributions by employers to personal pension schemes)—

(i)after “an employer” insert “to a personal pension scheme”;

(ii)in sub-paragraph (a) for “amount of benefit” substitute “amount of age related benefit, derived from contributions made each year by the employer,”, and

(iii)for sub-paragraph (b) substitute—

(b)to make more nearly equal the amount of the age related benefit, derived from contributions made each year by the employer, to which workers of different ages who are otherwise in a comparable situation will become entitled under their personal pension schemes.;

(s)in paragraph 32 (excepted rules, practices, actions and decisions relating to contributions by employers to personal pension schemes) after “an employer” insert “to a personal pension scheme”, and

(t)after paragraph 32 add—

33.  Any limitation on any contributions by an employer, to a personal pension scheme, by reference to a maximum level of remuneration.

34.  A minimum age for commencement of payment of contributions by an employer to a personal pension scheme in respect of a worker.

35.  Different minimum ages for commencement of payment of contributions by an employer to a personal pension scheme in respect of different groups or categories of workers.

36.  Equal rates of contributions by an employer to a personal pension scheme irrespective of the age of the workers in respect of whom contributions are made..

Sealed with the Official Seal of the Department for Social Development on 13th November 2006

Legal seal

John O’Neill

A senior officer of the Department for Social Development

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Age Regulations”) which implement Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2.12.2000, p.16) so far as it relates to discrimination on grounds of age. These Regulations deal with provisions relating to pensions.

Every occupational pension scheme shall from 1st December 2006 be treated as if it has a “non-discrimination rule”. This provides that trustees or managers of the scheme must refrain from any act which is unlawful by virtue of regulation 12 of the Age Regulations. Schedule 1 to the Age Regulations provides exemptions for certain rules, practices, actions or decisions in relation to occupational pension schemes and employer contributions to personal pension schemes.

Regulation 1 provides for citation, commencement and interpretation.

Regulation 2(2) amends regulation 12 of the Age Regulations so that it will apply to both employers and trustees or managers in relation to occupational pension schemes and refers to “pensionable service” rather than just “service”.

Regulation 2(3)(a) amends the interpretation provisions in paragraph 1 of Schedule 1 to the Age Regulations. Regulation 2(3)(a)(i) amends paragraph 1(4) of that Schedule so that the definition of “occupational pension scheme” used in the Finance Act 2004 is applied to additional paragraphs in Schedule 1. Regulation 2(3)(a)(ii) adds further definitions and deletes some others. In particular the definition of “early retirement pivot age” is substituted and definitions of “block transfer” and “relevant transfer” are inserted. Regulation 2(3)(a)(iii) omits paragraph 1(7) of that Schedule so that for the purposes of Schedule 1 a section of a scheme can no longer be treated as if it were a separate scheme. Regulation 2(3)(a)(iv) amends paragraph 1(9) of that Schedule so that the reference in regulation 12 to “occupational pension scheme” shall mean an occupational pension scheme within the meaning of either section 1 of the Pension Schemes (Northern Ireland) Act 1993 or section 150(4) of the Finance Act 2004.

Regulation 2(3)(b) inserts paragraph 3A into Schedule 1 to the Age Regulations to provide that trustees or managers and an employer in relation to occupational pension schemes can avail of a service related exemption along the lines of the exemption in regulation 34 of the Age Regulations for the award of benefits by an employer.

  • Paragraph 3A applies where a rule, practice, action or decision of an employer or the trustees or managers results in a difference in treatment between two members with different lengths of service where a disadvantage is suffered as a result of a length of service criterion. The difference in treatment must relate to the admission to a scheme, accrual of benefits and eligibility for any benefits under a scheme or payment of contributions to a money purchase arrangement (including a personal pension scheme). The difference must be justified where the member who is treated differently has more than five years service with the employer. The justification must be provided by an employer in relation to the scheme. The employer must ensure that it reasonably appears to him that the way in which the length of service criterion applies fulfils a business need of his undertaking. Where the difference in treatment is as a result of a rule, practice, action or decision of the trustees or managers, the trustees or managers must ask the employer to provide them with the justification for the difference in treatment. The employer must still ensure that it reasonably appears to him that the way in which the length of service criterion applies fulfils a business need of his undertaking.

Regulation 2(3)(c) inserts paragraph 4A into Schedule 1 to the Age Regulations to confirm that the existence of an exemption in that Schedule does not necessarily mean that but for the exemption the rule, practice, action or decision is unlawful.

Regulation 2(3)(d) substitutes paragraph 7(b) of Schedule 1 to the Age Regulations to allow for a minimum level of pensionable pay before a worker may be admitted to a scheme. This minimum level can be an amount up to 1.5 times the lower earnings limit or an amount which reflects the state retirement pension (either the basic pension plus the state second pension or just the basic pension).

Regulation 2(3)(e) and (f) make minor amendments to paragraphs 8 and 9 of Schedule 1 to the Age Regulations.

Regulation 2(3)(g) amends paragraph 10 of Schedule 1 to the Age Regulations. Paragraph 10(a) exempts different age related rates of contributions to schemes provided that the aim is to make benefits “equal” or “more nearly equal”. The amendments to paragraph 10(a) clarify that when applying the “equal” or “more nearly equal” tests, it is the benefits which result from comparable aggregate periods of pensionable service that are compared. Regulation 2(3)(g) also adds paragraph 10(c) which exempts employer and member contributions which are limited by reference to a maximum level of pensionable pay.

Regulation 2(3)(h) inserts paragraph 11A into Schedule 1 of the Age Regulations which exempts where an employer’s or member’s contributions to a defined benefit arrangement are limited by reference to a maximum level of pensionable pay.

Regulation 2(3)(i) substitutes paragraphs 12 to 16 of Schedule 1 to the Age Regulations.

  • Paragraph 12 allows schemes to set a minimum age from when an age related benefit is paid. The minimum age must be before the early retirement pivot age which applies to the age related benefit. The age related benefit must be reduced for early payment and must not be enhanced. In particular, paragraph 12 has been amended to clarify that, there can be different minimum ages for different groups or categories of members and the minimum age can be subject to the consent of the employer or the trustees or managers. Paragraph 12 does not apply where paragraph 13, 13A or 15 apply to early retirement.

  • Paragraph 13 allows active or prospective members of a scheme to retain an entitlement on 1st December 2006 to a minimum age for payment of age related benefit. This may be a minimum age at which there is entitlement to the benefit either with or without consent. This may also be a minimum age for payment of the benefit with or without consent. When a benefit is paid at either of these minimum ages it may be enhanced in one or more of the ways specified in paragraph 13(2).

  • Paragraph 13A, subject to certain conditions, allows members who on 1st December 2006 have a right under paragraph 13 to payment of enhanced early retirement benefits to retain that right when they become members of subsequent schemes.

  • Paragraph 13B allows schemes to set a minimum age from when an age related benefit is paid in the event of retirement on the grounds of redundancy. This may be a minimum age at which there is entitlement to the benefit either with or without consent. This may also be a minimum age for payment of the benefit with or without consent. The minimum age must be before the early retirement pivot age which applies to the age related benefit. There can be different minimum ages for different groups or categories of member. Paragraph 13B also allows employers to enhance any age related benefit using one or more of the methods specified in sub-paragraph (2) of that paragraph.

  • Paragraph 14 provides that deferred members can have a different early retirement pivot age and late retirement pivot age from active members.

  • Paragraph 15 allows schemes to set a minimum age from when an age related benefit is paid where retirement is on the grounds of ill health. This may be a minimum age at which there is entitlement to the benefit either with or without consent. This may also be a minimum age for payment of the benefit with or without consent. The minimum age must be before the early retirement pivot age which applies to the age related benefit. There can be a different minimum age for different groups or categories of member. Paragraph 15 also allows employers to enhance any age related benefit in one or more ways specified in sub-paragraph (2) of that paragraph.

  • Paragraph 15A(1) allows schemes to calculate any death benefits by reference to prospective service the member could be treated as having completed if he had not died. Paragraph 15A(2) also exempts payment of benefits to dependants where they are paid when the member dies while in receipt of a pension guaranteed for a particular period. Paragraph 15A(4) exempts payment of different death benefits to deferred members who die on or after normal pension age.

  • Paragraph 16 allows a scheme to pay an additional pension to reflect that a member is not yet in receipt of his state retirement pension. It also exempts cessation of payment of such a pension when the person reaches his or her state pension age (currently 60 for women and 65 for men).

Regulation 2(3)(j) amends paragraph 17 of Schedule 1 to the Age Regulations to clarify that when a pension paid to a dependant of a deceased member is reduced to reflect that the dependant is younger than the member, that reduction must be an actuarial reduction.

Regulation 2(3)(k) amends paragraph 18 of Schedule 1 to the Age Regulations to clarify that paragraph 18 only applies to early retirement on the grounds of ill health. It is not necessary for retirement to occur before the early retirement age pivot. Regulation 2(3)(k) also makes a minor amendment.

Regulation 2(3)(l) makes a minor amendment to paragraph 19 of Schedule 1 to the Age Regulations.

Regulation 2(3)(m) inserts paragraphs 19A and 19B into Schedule 1 to the Age Regulations.

  • Paragraph 19A allows different accrual rates or different death benefits for active or prospective members who are in comparable situations, where the aim is that they will on retirement get the same fraction, proportion or multiple of pensionable pay as an age related benefit or death benefit. This is regardless of whether the members actually continue in pensionable service until normal pension age. It also allows schemes to cap the level of benefits by reference to a fraction, proportion or multiple of pensionable pay or minimum pensionable service (or both).

  • Paragraph 19B exempts payment of different employer or member contributions where paragraph 19A applies to the target benefit.

Regulation 2(3)(n) substitutes paragraphs 21 to 24 of Schedule 1 to the Age Regulations.

  • Paragraph 21 provides that any age related benefit or death benefit can be limited by reference to a maximum number of years of pensionable service and/or by reference to a fraction, proportion or multiple of pensionable pay.

  • Paragraph 22 exempts payment of an age related benefit or death benefit where the requirement to provide short service benefit under section 67 of the Pension Schemes (Northern Ireland) Act 1993 applies (where a member leaves service before normal pension age and after 2 years qualifying service short service benefits must be provided).

  • Paragraph 23 makes similar provision as made in paragraph 7(b) by regulation 2(3)(d). It allows benefits from a scheme to be calculated in a manner which excludes from the pensionable pay an amount up to 1.5 times the lower earnings limit or an amount which reflects the state retirement pension (either the basic pension plus the state second pension or just the basic pension).

  • Paragraph 23A makes provision for schemes which are not contracted-out of the second state pension and provide for higher accrual rates for pensionable pay above the upper earnings limit.

  • Paragraph 24 exempts limits on any age related benefit or death benefit where those benefits may only be calculated by reference to a maximum level of pensionable pay. In addition this limit can apply to all members or certain groups or categories of members.

Regulation 2(3)(o) inserts paragraph 25A into Schedule 1 to the Age Regulations. Paragraph 25A exempts closure of any section of a scheme to workers who have not joined the section. There is no limit on the number of sections in a scheme which may be closed to new members. There is no requirement that the whole scheme must be closed to new members. Paragraph 25A(2) defines a section of a scheme.

Regulation 2(3)(p) makes a minor amendment to paragraphs 27 and 28 of Schedule 1 to the Age Regulations.

Regulation 2(3)(q) amends paragraph 30 of Schedule 1 to the Age Regulations. Paragraph 30 exempts anything done to secure any tax relief or exemption available under the Finance Act 2004 or to avoid a tax charge under that Act. Paragraph 30(2) is omitted to allow schemes to rely on the exemption in paragraph 30 of Schedule 1 to the Age Regulations when setting minimum ages for payment of benefits. Regulation 2(3)(q) also makes some minor amendments.

Regulation 2(3)(r) and (s) makes minor amendments to paragraphs 31 and 32 of Schedule 1 to Age Regulations. Regulation 2(3)(r) also amends the text in paragraph 31 of that Schedule for exempting age related contributions in the same way as paragraph 10(b) of that Schedule is amended by regulation 2(3)(g).

Regulation 2(3)(t) adds paragraphs 33 to 36 to Schedule 1 to the Age Regulations.

  • Paragraph 33 allows employers to limit contributions to personal pension schemes by reference to a maximum level of remuneration.

  • Paragraphs 34 and 35 allow employers to set a minimum age for commencement of payment of contributions to a personal pension scheme or different minimum ages for different groups or categories of workers.

  • Paragraph 36 allows employers to make equal contributions in respect of workers to personal pension schemes.

An assessment of the cost to business of these Regulations is detailed in a Regulatory Impact Assessment, copies of which have been laid in the Business Office and the Library of the Northern Ireland Assembly. Copies of the Assessment are available from the Department for Social Development, Social Security Policy and Legislation Division, Level 1, James House, 2-4 Cromac Avenue, Gasworks Business Park, Ormeau Road, Belfast, BT7 2JA.

(1)

See Schedule 2 to the European Communities (Designation) (No. 3) Order 2002 (S.I. 2002/1819)

(5)

1992c. 7; section 44 was amended by paragraphs 2 and 3 of Schedule 4 to the Social Security (Consequential Provisions) (Northern Ireland) Act 1992 (c. 9), Article 125(1) and (2) of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)), Article 64 of the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)), sections 29(2) and 33(5) to (7) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.)), paragraph 10 of Schedule 1 to the National Insurance Contributions Act 2002 (c. 19) and S.R. 2006 No. 109. Section 45 was amended by sections 31(1) and (2) and 33(8) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000

(6)

1993 c.49; section 64A was inserted by Article 33 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11))

(7)

The definition of “guaranteed minimum pension” was amended by paragraph 2 of Schedule 1 to S.R. 2005 No. 433

(8)

Section 5 was substituted by paragraph 1 of Schedule 10 to the Welfare Reform and Pensions Act 1999 (c.30)

(9)

Section 6 was amended by paragraph 18 of Schedule 3 to the Pensions (Northern Ireland) Order 1995, paragraph 39 of Schedule 1 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671) and Article 29(2) of the Welfare Reform and Pensions (Northern Ireland) Order 1999

(11)

S.I. 1981/1794; these Regulations were revoked by regulation 20(1) of S.I. 2006/246 as from 6 April 2006, except in relation to a transfer that took place before that date

(13)

Section 5(2B) was inserted by Article 133(3) of the Pensions (Northern Ireland) Order 1995 and amended by paragraph 38(2) of Schedule 1 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999

(14)

Section 1 was amended by Article 216 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 11))

(16)

Paragraph 2(5) of Schedule 28 was substituted by paragraph 20(3) of Schedule 23 to the Finance Act 2006 (c.25)

(17)

Paragraph 1 of Schedule 2 was amended by paragraph 28 of Schedule 2 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.))

(18)

Section 67 was amended by Article 240(1) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)) and modified by regulation 14 of, and paragraph 3 of Schedule 2 to, S.R. 2005 No. 581 in relation to European members of cross-border schemes

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