Recent determinations of the Pensions Ombudsman¹ have considered the extent to which employers should provide information on pension rights to employees who have notified them of a terminal illness.
There is no general duty on employers to advise employees about their pension rights, or to safeguard employees' economic well-being. Indeed, the law prohibits anyone other than a person authorised by the Financial Conduct Authority from advising on pension rights.
However, a distinction should be drawn between "advising" and "providing information". In some situations the law imposes specific duties on employers to provide information about pension rights to employees. When the law is silent, however, getting things right can be tricky.
For employees with terminal illness, there are likely to be different options available under their pension scheme that impact the overall amount of benefits payable. To make a decision that is right for them, the member will need to have all relevant information to hand. Often, timing of any decision they make will also be critical.
As a matter of law, the fact that an employee is terminally ill does not in itself give rise to a heightened duty of disclosure on the part of the employer. Nevertheless, in recent determinations the Pensions Ombudsman has considered the extent to which an employer should, as a matter of good practice, provide a terminally ill employee with information about their pension rights.
Pensions Ombudsman decisions
The Pensions Ombudsman accepts that, on learning of an employee's terminal illness, there is no general duty on employers to provide the employee with information on which retirement option would be the most financially advantageous in their circumstances. However the determinations indicate that, to follow good practice, employers should:
- Deal with any queries from the employee about their retirement options and benefits quickly, taking into consideration the fact that the employee may have limited pensions knowledge and be preoccupied with their health.
- Where possible, provide the employee with information on the pension scheme's benefit structure (for example, by providing a copy of the scheme booklet).
- Suggest that the employee seeks independent financial advice before making their decision.
- Make decisions on the employee's ill-health retirement application without delay and, on approving the application, set the retirement date as early as possible.
- If before the retirement date the employee's condition deteriorates, consider giving the employee an option to bring forward their retirement date.
A determination of the Pensions Ombudsman only binds the parties to the dispute, and does not create a binding precedent. However, it seems clear that in terminal ill health cases the Ombudsman is prepared to closely scrutinise actions taken by the employer.
Originally published July 24, 2019
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2019. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.