Cemex UK Marine Ltd v MNOPF Trustees Ltd

Under regulation 6(4) of the Occupational Pension Schemes (Employer Debt) Regulations 2005, an employment cessation event depends on whether the employer employs anyone in the description of employment to which the scheme relates. It does not depend solely on whether an employee is an active member.

Continuing employment of a deferred or pensioner member may therefore prevent an event. Employment of persons eligible for membership may also suffice. A subjective intention to employ a qualifying person in the future cannot prevent an event if, at the relevant time, no such employee is employed.

The claimant participated in the Merchant Navy Officers Pension Fund, a multi-employer defined benefit occupational pension scheme. The defendant trustee alleged that an employment cessation event occurred on 28 November 2005, when the claimant’s only active member reached normal pension age and ceased to be an active member.

The claimant continued to employ that person as an Officer, employed other persons within the description of employment covered by the scheme, and intended to employ another active member in the future. The central issue was whether regulation 6(4) concerned the status of employees’ pension scheme membership or the description of employment in which they were employed.

1. Construction of regulation 6(4). The words “employing persons in the description of employment to which the scheme relates” identify the relevant employment description, not active-member status. The wording is materially reflected in the definition of pensionable service in section 124(1) of the Pensions Act 1995, and reading it as meaning active members would distort that provision and make parts of regulation 9 surplus.
2. The claimant therefore remained an employer for regulation 6(4) purposes while employing persons in the relevant employment description. This included persons eligible for membership who had not joined the scheme, and Mr Blair, who continued in employment after becoming a deferred and then pensioner member.
3. The court derived no assistance from the later regulations, earlier regulations or the decision in Hearn v Dobson [2008] EWHC 1620. Those materials concerned different provisions or different regulations. The later regulations’ express reference to active members did not determine the meaning of the earlier regulation.
4. A future intention to employ a qualifying person is insufficient. The question is factual and operates from time to time: either the employer has an employee satisfying regulation 6(4), or it does not.
5. The answers were: no employment cessation event generally; no event where the claimant employed eligible non-members; no event where it employed Mr Blair as a deferred member; and an event where it merely intended to employ Mr Hunter in the future.