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How is the Pensions Regulator reacting to the crisis?

  • The Pensions Regulator has published regularly-updated guidance for employers.
  • It will take “a proportionate and risk-based approach towards enforcement decisions … with the aim of supporting both employers and savers”. In other words, the law remains the same, but the Regulator will show restraint in enforcement against breaches.

Related FAQs

What if I have missed the January deadline for submitting my 2018/2019 tax return?

You had until 23 April 2020 to submit your return in order to be considered for eligibility.

Can we require employees who have been shielding to return to work at the end of the 12 week shielding period?

The Government introduced shielding in the peak of the pandemic. Current advice is that shielding is not required. However, those who have been shielding are likely to be the most vulnerable and will likely be nervous about a return to work. They may also be disabled under the Equality Act 2010. You should therefore consider any concerns that are expressed and take action to mitigate any risks. For example, it may be possible to keep these employees on furlough until the scheme runs out or they may be able to work from home. If you would like to discuss any specific scenarios then please contact one of the team.

Is it legally enforceable?

The guidance is non-statutory and is not binding on business. However, businesses should be aware that there might be reputational consequences if they do not follow the guidance; we have already seen in the context of taking advantage of furlough funding that not being in breach of the law is no protection against negative publicity. Further to the extent a contract expressly requires parties to act reasonably, it could be expected that this guidance is one of the factors a court would consider in determining what is reasonable.

Can I enact a rent suspension clause in my commercial lease?

Most rent suspension clauses in commercial property leases are unlikely to come to the assistance of the tenant. These clauses normally apply only where the premises has suffered substantial physical damage and are, as a consequence, incapable of being occupied, used or accessed. The coronavirus pandemic does not involve any physical damage to a property, loss from the crisis will be purely financial. Such losses then will not be covered by the landlord’s buildings insurance policy in a way that will allow a tenant to claim rent suspension.

What should I do if I think this is relevant to my contracts?

It would be prudent to take legal advice early in relation to any issue you foresee in performing a contract. This will allow you to:

  • Ensure that initial contact with your counterparty is framed in the correct way
  • Ensure that any variations are fully documented so that both parties are fully protected