Citation and commencement

1. —(1) These Regulations may be cited as the Franchising Schemes and Enhanced Partnership Schemes (Pension Protection) (England) Regulations 2017.

(2) These Regulations come into force on 19th December 2017.

(3) These Regulations apply in relation to England only.

Interpretation

2. In these Regulations—

“the 2000 Act” means the Transport Act 2000;

“relevant employee” means a transferring original employee who, as an employee of the original operator, had rights to acquire pension benefits( 3 ); and

“scheme” means a franchising scheme or an enhanced partnership scheme( 4 ).

Duties to secure pension protection

3. —(1) The duties prescribed in paragraph (2) apply to a local transport authority, or two or more such authorities acting jointly, which have made a scheme and which—

(a) enter into a local service contract( 5 ) or, as the case may be, an awarded contract( 6 ) with a person under the scheme; or

(b) enter into, in the circumstances described in section 123X(2) or, as the case may be, 138S(2) of the 2000 Act, any other agreement with a person for the provision of local services in the area to which the scheme relates.

(2) The authority or authorities must ensure that any contract or agreement entered into with a person in a situation described in paragraph (1) is made, in the event of there being any transferring employees( 7 ), on terms—

(a) that require the person to secure pension protection( 8 ) for every relevant employee;

(b) that, where there are relevant employees, require the person—

(i) to procure a pensions statement which satisfies the requirements prescribed in regulation 6; and

(ii) to provide every relevant employee with a copy of any part of the statement which relates to that employee; and

(c) that, so far as relating to—

(i) the requirement to secure pension protection described in sub-paragraph (a); and

(ii) the requirement to procure and provide the statement described in sub-paragraph (b),

are enforceable against the person by every relevant employee.

Rights to acquire pension benefits

4. For the purposes of section 123X(8)(b) and 138S(8)(b) of the 2000 Act (rights to acquire pension benefits), the rights to acquire pension benefits which a relevant employee must have as an employee of the new operator( 9 ) are rights which—

(a) are the same as the rights the relevant employee had as an employee of the original operator; or

(b) count, by virtue of regulation 5, as being broadly comparable to, or better than, those rights.

Broadly comparable

5. —(1) For the purposes of regulation 4(b), the rights to acquire pension benefits, which a relevant employee must have as an employee of the new operator, count as being broadly comparable to, or better than, the rights which the employee had as an employee of the original operator—

(a) if the rights satisfy the condition prescribed in paragraph (2); or

(b) if, in the situation described in paragraph (3), the rights satisfy all of the alternative conditions prescribed in paragraph (4).

(2) The condition is satisfied if the rights to acquire pension benefits that the relevant employee would have as an employee of the new operator mean that the employee would suffer no material detriment overall in terms of the employee’s future accrual of pension benefits.

(3) The situation is that there are exceptional circumstances which mean that it would not be reasonably practicable for the new operator to grant rights to the relevant employee which satisfy the condition prescribed in paragraph (2).

(4) The alternative conditions are satisfied if—

(a) the rights to acquire pension benefits granted to the relevant employee include arrangements to pay compensation to the relevant employee; and

(b) the arrangements to pay compensation described in sub-paragraph (a) are such that the compensation is sufficient to offset the material detriment which would otherwise be suffered by the relevant employee.

Pensions statement

6. —(1) The pensions statement procured by a person entering into an agreement or contract, under a requirement specified in accordance with regulation 3(2)(b)(i), must be obtained in writing from a Fellow of the Institute and Faculty of Actuaries.

(2) The statement must certify—

(a) that, to the extent that the principles can be applied, the person making the statement has formed the opinion contained in the statement having had regard to the guidance for assessing broad comparability between two sets of pension scheme benefits set out in Annex A to HM Treasury’s note ‘Fair Deal for staff pensions: staff transfer from central government’ dated October 2013( 10 ); and

(b) that, in the opinion of the person making the statement, the new operator’s pension scheme offers relevant employees the rights to acquire the pension benefits prescribed in regulation 4 on the date the statement was made.