This article was originally published in Lexis Nexis on 4th April 2019
Pensions analysis: David Davison, director and owner of Spence & Partners who leads the public sector, charities and not-for-profit practice and heads a team advising third sector bodies on all aspects of pension provision, discusses the recent government consultation which intends to ensure that exit payments paid to public sector employees are ‘value for money for the taxpayer’.
HM Treasury opens consultation on restricting exit payments for public sector workers, LNB News 10/04/2019 90
HM Treasury has opened a consultation outlining how the government will introduce a £95,000 cap on exit payments for public sector workers. The policy will see UK civil service, local government, police forces, schools and the NHS taking part in the first stage of implementation. The consultation sets out proposed draft regulations, schedule to the regulations, accompanying guidance and directions. The deadline for responses is 11:59pm on 3 July 2019.
What is the background to HM Treasury’s consultation on draft regulations restricting exit payments in the public sector published on 10 April 2019?
There has been government concern for some time about the level of severance packages in the public sector. This issue dates back to May 2015, with the government announcing it would bring forward proposals to end six figure pay-outs, then running an initial consultation with proposals in February 2016 and implementing changes in the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) and amending in the Enterprise Act 2016.
SBEEA 2015 required secondary legislation which had a first reading in the House of Commons in September 2017, with them now consulting on the detail based upon the proposals issued on 10 April 2019. It’s been pretty slow progress, but I suppose no-one should be that surprised by the contents. When this was looked at initially, there seemed to be some high profile severances and a real concern about senior staff in the public service exiting for large severances and then returning to another similar job a short time later.
The proposals follow research they’d carried out which suggested that more than 1,600 highly paid workers received payments of more than £100,000 in 2016/17 costing a total of £198m. They estimate that the total cost of exit payments across the public sector in 2016/17 were £1.2bn. So, the proposed limit will impact less than 17% of total payments and any saving likely to be materially less than that as still some pay-out will be made. The focus is going to be very much limiting large payments at the top-end and not those for the vast majority.
What are the key proposals for change and why are they being implemented now? Are there any specific exclusions or exemptions under the proposals?
The proposals would implement a cap on the value of redundancy lump sums and pension top-up payments to £95,000 in total. Those organisations impacted are specified in the proposals, but it is the ultimate aim that the legislation will apply to all public sector employers at a future date so effectively we have a two-stage roll-out.
Payments made by devolved authorities are exempt, as are payments from secret intelligence service, the security service, the government communications HQ and the armed forces given their unique requirements. Payments from fire and rescue authorities are also proposed to be exempt as they do not increase the actuarial value of the pension payable.
As a general rule, accrued pension entitlements are exempt as they do not incur an additional cost to the public purse however payments which do involve an additional employer cost (such as ‘strain costs’ payable on redundancy) would be included. Other exemptions include death-in-service benefits, incapacity benefits, a payment in lieu of contractual leave not taken, payment in lieu of notice or any payment made by court order or a tribunal.
The proposals provide a standard legal underpin, however they do not prevent employers from applying alternatives.
How would the introduction of the proposals impact on public sector employees and employers?
It is the employer’s responsibility to ensure that a payment is not made in excess of the cap. This will place an additional administrative burden on employers. Clearly for employers it would reduce the overall cost of severance packages. It is also likely to make planning for these costs more certain. For employers there will be a requirement to consolidate all payments to ensure that the cap isn’t breached. This will mean ensuring that ‘strain costs’ are identified early in the process to allow these to be incorporated.
Employee payments will at the higher end be lower which may influence decisions about exiting as it may make them less attractive or indeed unaffordable. This may also make the option of restructuring senior roles more difficult for employers possibly trapping senior employees in roles they are not wholly committed to. That said it may promote greater transferability between roles.
There is some guidance on the order of payments in Section 6 of the draft Restriction of Public Sector Exit Payments Regulations 2019. The legislation also proposes some flexibility in the implementation of the cap. Where there is flexibility—such as the priority between cash payments and pension strain costs—these will have to be clearly communicated to the employee to allow the required decisions to be taken. It’s likely that engagement will be required at a much earlier stage in the process to facilitate this.
One major concern with the proposals is that they would create a two-tier system in the public sector between employees who are in funded pension schemes and those who are in unfunded schemes. In funded schemes the ‘strain cost’ for early retirement would be deducted from the capped figure or benefits reduced. For those in unfunded schemes no equivalent mechanism exists to recoup redundancy/early retirement costs even though the same equivalent cost would be experienced by the Exchequer. This could mean that employees (and in some cases employers) in unfunded schemes benefit from a much better deal than their counterparts in funded schemes.
Employers will also have to be very careful in the implementation period not to take decisions which could result in costs materially higher than the level of the cap when it is imposed.
What is the timetable for implementation of the changes? What are HM Treasury’s next steps?
The consultation will last for 12 weeks to 3 July 2019. Responses to the consultation may be published. Post this, the draft Regulations may be implemented as proposed or revised.
Interviewed by Varsha Patel.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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