Protecting your investments in UK companies when dealing with UK Pension Schemes

Life at the interface of investments in, and acquisitions of, UK companies and the regulatory, funding and governance issues surrounding UK pension schemes can appear to be confusing and even hazardous even for the most experienced operators and investors. Not so for Adam Bushby, our lead pensions partner at our world-renowned firm Gunnercooke LLP.

Our pensions team regularly advises on the market’s most complex and high-profile deals, providing an integrated service which covers all aspects of pensions law with an emphasis on corporate support. We work with clients from a wide range of industries, in both the private and public sectors, including sponsoring employers, trustees, buyers, sellers, investors, lenders, insurers and retail pension providers.

We deal regularly, on behalf of our clients, with the UK Government’s principal regulatory body in this field, the Pensions Regulator. Where appropriate, we engage in litigation to protect our clients and their shareholders from the threat of sanctions imposed by the Pensions Regulator.

Adam and his highly experienced partners provide pragmatic and cost-effective advice on all types of registered and unregistered pension arrangements, helping investors and clients negotiate the increasingly complex legal and regulatory requirements governing this area globally.

Our work includes advising on regulatory compliance, acquisitions and disposals of companies which have pension schemes, alongside day-to-day legal advice on the governance and administration of UK pensions schemes We have significant experience on advising on pensions matters in relation to multi-jurisdictional corporate transactions.

Gunnercooke LLP offers expertise in all relevant areas of commercial and corporate law. Our pensions lawyers are able to draw upon the experience of our other practice teams, including employment and labour, corporate, finance, tax, insurance, dispute resolution and banking to offer tailored advice to meet clients’ individual needs and requirements.

The UK world of retirement benefits provision and employee saving involves significant funding obligations, negotiations with trustees, employee remuneration, disputes and industrial relations, accounting, investment planning, monitoring and regulation, the actuarial valuation of liabilities, long-term funding and cash flow requirements, regulatory compliance, tax compliance, data protection and data handling, and fiduciary duties.

In contrast to most other countries, UK pension benefits are often held within pension schemes set up under trust and managed by trustees, rather than employers. The trustees may be employees or former employees of the sponsoring employer or may be completely independent. Sponsoring employers may have limited control in practice over how such schemes are run or how investments are chosen or managed, while being on the hook for funding pension benefits including any historic funding deficits. We are adept at helping employers understand how to gain influence in the running of their pension arrangements and use soft power to work successfully in partnership with trustees while reducing the risk of any regulatory intervention.

An investor in a UK business needs to take particular care to understand which type of pension arrangement is provided in respect of the employees of a target investment. Obligations can range from the requirement to provide a minimum level of pension contributions to a defined contribution scheme through to assuming liability for historic pension liabilities.

Particular care needs to be taken regarding defined benefit pension schemes, sometimes called final salary pension schemes. These can involve significant hidden costs and risk. The funding of defined benefit pension schemes is a particularly heavily regulated area and the UK Pensions Regulator is becoming increasingly interventionist in ensuring that pension schemes are properly funded.  A scheme in deficit can result in significant cost to the sponsoring employer and consequently can affect the value of any investment. Additionally, the UK Pensions Regulator has extensive powers to take action where it considers that any corporate activity might adversely affect the ability of an employer to fund its defined benefit pension scheme and, as of April 2022, certain types of transactions must be notified in advance to the Regulator.

The UK Pensions Regulator has the power to require a person that is (or has been) connected with a pension scheme employer to make a contribution to that employer’s pension scheme, up to the full amount of any deficit in the scheme – a contribution notice. Failure to pay an amount due under a contribution notice could result in a criminal penalty of an unlimited fine or a financial penalty of up to £1 million.

A shareholder in an employer which has a DB pension scheme, whether in the UK or overseas, can be made liable to provide financial support for that DB pension scheme under a financial support direction imposed by the UK Pensions Regulator.

Anybody involved with the running of a defined benefit pension scheme or the operation of an employer (e.g., company director or shareholder) could also be caught by the two offences of ‘avoidance of an employer debt’ and ‘conduct risking accrued scheme benefits’ if they do not have a reasonable excuse for their actions. The UK Pensions Regulator can here also impose criminal and civil penalties for breaches of the law.

Trustees of pensions schemes also have obligations in relation to how their pension schemes account for climate change and environmental, social and governance (ESG) considerations.

We have guided our clients to successful outcomes for their pension responsibilities in the following matters:

• Defined benefit arrangements
• Defined contribution and hybrid arrangements
• Dispute resolution and litigation, including disputes with the UK Pensions Regulator and claims before the Pensions Ombudsman and High Court
• International pensions
• Pension plan documentation
• Pension plan mergers
• Professional pension scheme trusteeship, through gcTrustees Limited of which Adam Bushby is a director
• Professional negligence by advisers in respect of UK pension schemes
• The de-risking of UK pension schemes including insurance buy-ins and buy-outs
• UK and multi-jurisdictional transactions involving UK and overseas pension arrangements
• Regulatory issues with the UK Pensions Regulator
• Retirement savings arrangements
• Risk advisory
• Superannuation
• Tax
• Winding-up
• Ownership and treatment of pension surplus
• The funding of Defined Benefit pension schemes and deficits
• Debt on the employer legislation
• Contribution Notices and Financial Support Directions
• Pension fund investments

Adam’s work, and that of the Gunnercooke team, over the course of many transactions and instructions devoted to their clients have earned them accolades from peers and clients alike in the prestigious law directories, Chambers UK and The Legal 500.

As a trusted advisor in his field, Adam has been recognised in the Chambers directory as being ”able to understand the issues in an instant’, ‘extremely knowledgeable” and “appreciated for his communication skills”.  He has also been recognised by The Legal 500 UK 2021 and 2022 as a Recommended Lawyer.

One client states that Adam’s pensions team “takes personal responsibility across all of the issues. This gives really good continuity and a deep understanding of our circumstances“. The Legal 500 and praise “the consistency in the team, which is as much a product of the firm’s culture as the individuals’ strengths.” Chambers UK.

Another client has said “Gunnercooke gives direct access to senior lawyers across the Their fees are competitive and their responsiveness is excellent”.

For more information about Adam click on the following link https://gunnercooke.com/people/adam-bushby-pensions-lawyer

For more information about our Pensions offering click on the link here https://gunnercooke.com/practice-area/pensions/

To arrange a meeting with Adam or one of his team, please contact Adam Bushby at bushby@gunnercooke.com or call him on +44 (0)20 7274 5287 or +44 (0)7976 260768.

For further advice and assistance please contact:

Gunnercooke LLP
1 Cornhill
London
EC3V 3ND
Website: www.gunnercooke.com