Changing employees’ pension arrangements by contractual variation
Produced in partnership with Wyn Derbyshire of gunnercooke LLP
Changing employees’ pension arrangements by contractual variation

The following Pensions practice note Produced in partnership with Wyn Derbyshire of gunnercooke LLP provides comprehensive and up to date legal information covering:

  • Changing employees’ pension arrangements by contractual variation
  • The extrinsic contract approach
  • Key points arising from case law
  • Practical points for sponsoring employers
  • South West Trains v Wightman
  • Hodgson v Toray Textiles
  • HR Trustees v German ('the IMG case')
  • Bradbury v BBC
  • IBM v Dalgleish

Employees’ pensions rights under an occupational pension scheme can be categorised as:

  1. pension rights arising under the trusts of the relevant pension scheme, and

  2. contractual terms arising under the employees’ employment contract (either expressly or impliedly)

For further information, see Practice Note: Pensions and the employment contract.

Recognition of the dual nature of pension rights is important, especially if changes are contemplated to employees’ future pension rights. Generally, changes to employees’ pension rights under an occupational pension scheme will require exercise of the scheme’s amendment power (the sponsoring employer may also be required to consult employees on the proposed changes). However, given the dual nature of pension rights, employers will often also seek to obtain employees’ express consent to the proposed changes (usually following the conclusion of any consultation exercise) so as to minimise the likelihood of a successful challenge by the employees under their employment contracts or other relevant contractual documentation (eg employee handbooks or collective agreements).

For further information on consultation by employers, see Practice Note: Pension consultation requirements—an introduction.

The extrinsic contract approach

There have been a number of cases over the years where an amendment was believed initially to have been made to the governing provisions of a pension scheme by exercise of the scheme’s amendment power, but where that exercise has subsequently been held or been feared to be invalid, usually because pre-conditions

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