Construction analysis: The Technology and Construction Court (TCC) granted a declaration sought by a contractor on how to interpret a clause stating a time limit for the employer to issue a notification relating to costs which the contractor was liable for, holding that, by issuing the notification the next day (which was a Monday) following the last date that the notification should have been issued (which was a Sunday), the employer was out of time. A major part of the reason for this was that the relevant provision did not include any reference to the period being calculated by ‘Business Days’.

Pensions analysis: The Deputy Pensions Ombudsman has upheld a complaint about an employer’s role in a delayed pension transfer. Martin Scott of gunnercooke LLP looks at the decision.

Automatic enrolment duties The auto-enrolment regime, established under Part 1 of the Pensions Act 2008 (PenA 2008), imposes three key enrolment duties on employers: • to enrol all of their ‘eligible jobholders’ automatically into an ‘automatic enrolment scheme’ (the auto-enrolment duty) • to enrol ‘non-eligible jobholders’ into an ‘automatic enrolment scheme’ if they choose to opt in • to enrol ‘entitled workers’ who request to join a scheme into a registered pension scheme Broadly, since 2017, the enrolment duties start to apply to the employer from the date the first worker begins to be employed by them. The minimum quality standards required of an automatic enrolment scheme depend on the nature of the scheme (eg whether it is a 'defined benefit' (DB) or 'defined contribution' (DC) arrangement). In order to help employers comply with the auto-enrolment duty, the government established a low-cost pension scheme known as the National Employment Savings Trust (NEST), which was fully compliant. Many employers use NEST, and in addition the government and the Pensions Regulator

This Practice Note covers various disclosure obligations which apply to employers in respect of pensions information. Depending on the disclosure obligation, the pensions information may have to be disclosed to the scheme members, the trustees and/or the Pensions Regulator. General requirements to disclose information to trustees Legislative requirement Under the Occupational Pension Schemes (Scheme Administration) Regulations 1996, SI 1996/1715 (the Scheme Administration Regs), an employer participating in an occupational pension scheme is legally obliged to disclose information to the scheme trustees (eg about a particular matter or event such as a proposed transaction) in the following circumstances: • at the trustees' request, if the information is reasonably required for the performance of their duties or their advisers' functions. If the employer deals with the administration of the scheme, this includes information about who administers the scheme and the terms on which they do it • if an event occurs in relation to the employer which there is reasonable cause to believe will be of material significance in the exercise of the trustees' functions or their advisers'

Pensions analysis: The Deputy Pensions Ombudsman has partially upheld a complaint about the calculation of a pension. Martin Scott of gunnercooke LLP looks at the decision.

Pension contributions made by an employer into a pension scheme for the benefit of a worker are not 'wages' for the purposes of a deductions from wages claim, and hence any failure to pay such contributions, or failure to pay them at the expected frequency and/or rate may not form the subject of such a claim before the employment tribunal. EAT: Somerset County Council v Chambers.

Financial provision by an employer for the retirement or death of their employees by the setting up of a pension scheme or fund or similar arrangement outside the formal requirements of the Finance Act 2004. The employer may make contributions in advance in order to fund the benefits (a funded scheme) or simply pay benefits on retirement or death (an unfunded scheme).

Pensions analysis: The Pensions Ombudsman has rejected a complaint about discretionary pension increases. Martin Scott of gunnercooke LLP looks at the decision.

Pensions analysis: In the determination of Mr S, CAS-110689-M5K1, the Pensions Ombudsman has rejected a complaint from Mr S that his pension should increase fully in line with inflation where the scheme trustee had discretion to pay increases above 5% if requested by the principal employer. Mr S had complained that the increase applied to his scheme pension should have been 7.5% instead of the 5% increase that was actually awarded, in contradiction to a commitment made in the scheme newsletter. The Ombudsman determined that the scheme had correctly applied the rules and the newsletter did not guarantee that inflation linked increases would be granted. The employer had not breached its Imperial duty of good faith by refusing to sanction an increase above 5%. Martin Scott of gunnercooke LLP looks at the decision.

Construction analysis: The Outer House of the Court of Session held that the building owner was not required to include each and every objection which the tenants had to completion taking place in a notice to be issued to the contractor, and subsequently to ensure that each of these was addressed before they agreed that completion had taken place. The case also once again indicates the court’s approach to contractual interpretation—it chose to adopt a literal interpretation of the relevant clause in the agreement rather than implying a different interpretation based on the wider commercial and factual context of the works contract itself and settlement agreements entered into between the contractor and each of the tenants.

An event, circumstance or cause which, under the contract, is at the risk or responsibility of the employer—if the event/circumstance transpires, then the contractor will be generally be entitled to additional time and money (depending on what the contract says).

This Checklist sets out a number of practical steps that an employer should consider taking where the main contractor it has engaged becomes insolvent during a construction project. This Checklist assumes that the employer has entered into a written contract with a main contractor for construction works which are not yet complete (and that the employer still wants to complete the works), and that the contractor has engaged sub-contractors. It assumes that it is not a PFI project. The actions to be taken in any specific situation will of course depend on the terms of the contract(s) between the parties and the status of the works at the time of the main contractor’s insolvency, but this Checklist is intended to provide a starting point for the employer to consider. For guidance on how to spot potential problems with solvency and how to protect the employer’s position at the outset of a project, see Practice Note: Construction insolvency—how to spot problems and how to protect yourself—employers. In the event that the main contractor has