November 2003 / Employers

Retrospective Access to Occupational Pension Schemes by Part-time Workers ('Preston')

Guidance for employers

Introduction

This guidance is aimed at employer respondents dealing with applicants who have lodged a claim with an Employment Tribunal (Form ET1) claiming unlawful exclusion from the Teachers' Pension Scheme because a period of part-time employment undertaken between 1976 and 1995 was excluded from the Scheme's part-time arrangments. However, this guidance is being sent to all TPS employers because the information held centrally is incomplete and it has not been possible to identify which employers are not involved in this exercise. Annex C contains a summary of the statutory changes affecting the Teachers' Pension Scheme.

On 3rd April 2003 the Employment Tribunal directed that by 1st August 2003 employer respondent must serve on the Employment Tribunal a schedule indicating whether (a) a claim could now be settled ("successful claims"); (b) on the information currently available it is not known whether a claim could be settled ("not known claims"); and(c) the claim is not yet ripe for settlement (i.e it is still subject to outstanding appeals).

The Tribunal also directed that the representatives of the applicants and respondents agree a standard form of questionnaire for the purpose of ensuring that all relevant information is available to enable the part-time worker pension cases to be settled. (Information Bulletin No 8 explains the directions and is available from www.gov.uk/employment-tribunals (This link opens in a new window)

The Teachers' Pension Scheme is a group scheme admininstered centrally. A Working Group was set up earlier this year to agree the Questionnaire and other administrative matters on which agreement is required. The teacher unions and the employer associations are represented on the Working Group and have agreed the format and procedure for completing the Questionnaire 'Education1' to be used for all claims involving the Teachers' Pension Scheme. (See Annex A for a full list of representative organisations and unions.)

The Employment Tribunual has directed that respondent employers send a copy of the Questionnaire to applicants whose ET1 claim falls in the following categories:

• "successful claims" - as the respondent employer, you have decided that the claim can proceed to be settled.
• "not known claims" - the information provided on Form ET1 is not sufficiently detailed to allow you, as the respondent employer, to agree whether the claim is successful or not.

Action to be taken by the employer on receipt of the completed Questionnaire

Applicants are asked to provide full details about the backdated service they wish to claim so that the employer can consider the claim and agree the details claimed. It is more than likely that employers will not have a record of the employment being claimed.

Applicants have been instructed to provide supporting evidence such as payslips, contracts of employment, tax forms, national insurance records or any other evidence which shows that they were in employment during the period they are claiming. If they cannot provide such evidence for any period that they are claiming then they must provide a written statement to support their claim.

It is also possible that claims may be have to be based on notional salary information. This would be the case if employment records are no longer available or, as is likely, the applicant was paid on a flat-rate hourly basis where there was no full-time equivalent rate. Note 2 on Part 3 of Questionnaire 'Education1' instructs applicants to enter 'Not known' and in these circumstances it will be necessary for employers to agree with applicants to use notional rates that have been jointly agreed by the teacher unions and employer associations. Guidance on these arrangements will be issued shortly.

Not known claims

If the information provided by the applicant shows that their claim is successful then follow the procedures for successful claims below. If the information shows that the case is unsuccessful then you must apply to the Employment Tribunal for the claim to be struck out. If the information shows that the case is 'not ripe' to be settled then you must inform the Tribunal identifying any outstanding issues preventing settlement.

Successful claims - verification

The applicants have been asked to provide detailed information about the amount of service they wish to claim, the number of hours worked per week and the hourly rate of pay with supporting evidence.

Firstly, you must consider the service claimed and the supporting evidence provided. If you are satisfied that the evidence supports the service claimed then you should proceed to the calculation stage.

If you are not satisfied that the evidence supports the claim then you should contact the applicant requesting further information. If you remain unsatisfied then you must notify the Employment Tribunal who list the case for hearing. If the information provided shows that your initial assessment made prior to 1st August 2003 that the case was successful was incorrect then you should follow the procedures for not know or not ripe claims above.

The Department has agreed that employer contributions for backdated membership shall be met by the scheme and not through a direct charge on individual employers. However, the Department will audit claims verified by employers to check that employers are carrying out their functions under this guidance properly. Where the Department is not satisfied the employer contributions will fall to be met by individual employers.