TOC demanding pension repayments after dismissal - a thing?

[Tallguy]

I don’t disagree with what you’re saying, but this is a very very high stakes game of poker with outcomes:

1: OP has hearing + is dismissed + unsuccessfully appeals = unemployed in pandemic + cannot work in rail industry.

2: OP has hearing + is dismissed and successfully appeals = Good outcome.

3: OP is not dismissed.

3: OP resigns and can continue to work on rail industry elsewhere.

It’s not like being dismissed from a shop and then going to work in another shop. It’s like being dismissed from Tesco and being unable to work in retail + Tesco tries to reclaim their contributions to your pension.

Are you telling me that TOC’s can reclaim pension payments made under law? Err, how exactly?

Even if dismissed it does not mean that the OP will never work in the rail industry again. But yes, this is high stakes although resigning isn’t the answer in my book.

 

[najaB]

It’s like being dismissed from Tesco and being unable to work in retail + Tesco tries to reclaim their contributions to your pension.

Can you expand on this, please?

 

[matt_world2004]

Can you expand on this, please?

If you are dismissed for certain offences some toc reserve the right to hand back any contributions you have made to the pension scheme and refuse any benefits of the pension scheme . The offence usually has to be really bad for this to happen though.

Have heard of it anecdotally happening to one person

 

[najaB]

If you are dismissed for certain offences some toc reserve the right to hand back any contributions you have made to the pension scheme and refuse any benefits of the pension scheme

Ah, that makes more sense. The previous post read as if the TOC would reclaim payments from the former employee.

 

[Tallguy]

If you are dismissed for certain offences some toc reserve the right to hand back any contributions you have made to the pension scheme and refuse any benefits of the pension scheme . The offence usually has to be really bad for this to happen though.

Have heard of it anecdotally happening to one person

I believe that is illegal. Be interesting to see any case history And see if it’s been tested in a court of law. A court of law over rules any contract of employment.

 

[MissPWay]

Ah, that makes more sense. The previous post read as if the TOC would reclaim payments from the former employee.

It’s the contributions THEY make, they do it all at the end rather than four weekly.

Ive seen it happen a few times. It only seems to apply to contributions from the TOC itself. One example was after 8 years or so which was pretty devastating for the guy.

The other was after 6 months or so of a new operator which obviously had less of an effect.

ASLEF didn’t take it to court, so who knows.

 

[najaB]

It’s the contributions THEY make, they do it all at the end rather than four weekly.

Ive seen it happen a few times. It only seems to apply to contributions from the TOC itself. One example was after 8 years or so which was pretty devastating for the guy.

That doesn't make any sense.

The company has made payments into a pension on behalf of the former employee. That employee will not be drawing a pension - meaning that they aren't going to be taking anything out of the pot. What is the loss that the employee is being made to make good? Or are you saying that the former employee has to repay the employer's contributions in order to keep the pension? (Even that would be of dubious legality)

 

[Tallguy]

It’s the contributions THEY make, they do it all at the end rather than four weekly.

Ive seen it happen a few times. It only seems to apply to contributions from the TOC itself. One example was after 8 years or so which was pretty devastating for the guy.

The other was after 6 months or so of a new operator which obviously had less of an effect.

ASLEF didn’t take it to court, so who knows.

I’m pretty certain this is illegal.

Can you please cite previous cases which we can review?

 

[Tazi Hupefi]

If you are dismissed for certain offences some toc reserve the right to hand back any contributions you have made to the pension scheme and refuse any benefits of the pension scheme . The offence usually has to be really bad for this to happen though.

Have heard of it anecdotally happening to one person

This is categorically unlawful, unless employment (or the pension contributions) was obtained under fraudulent pretenses initially. Even in that scenario, it would not be possible for the employer to just automatically recoup the contributions.

It's actually quite a common myth. You certainly forfeit accruing future pension rights (obviously), but anything obtained up until the very day your employment is terminated (for whatever reason) is yours to keep.

As for the reference, almost every company now (except small indy firms) tend to provide a generic statement of employment, e.g. last known position and your start and end dates with very little else. It is exceptionally rare to see a reference that states "resigned before dismissal" or "dismissed" or indeed any indication of how the employment even terminated. Often it's just something like:

I can confirm that Mr John Smith worked as a fishmonger at Fishy Tails Limited from 01/01/2009 until 30/03/2021.

I suspect that sort of reference will be the case regardless of whether you resign or are dismissed.

This person runs a real and probable risk of being dismissed for alleged fraudulent behaviour, concerning an amount of several thousand pounds. The union have already advised to resign and are clearly reluctant to assist beyond witnessing the hearing. Ultimately resignation gives you a degree of control back, and occasionally some satisfaction amongst the bitterness that you jumped on your own terms. I wish the poster the best of luck.

 

[MissPWay]

I’m pretty certain this is illegal.

Can you please cite previous cases which we can review?

Even if I gave you names, (which I obviously won’t) I’m unsure how you would even review it.

 

[ukkid]

Even if I gave you names, (which I obviously won’t) I’m unsure how you would even review it.

Normally contributions stop and you can move or cash in whatever has been accrued, much like if you moved jobs.

However, trying to get back the company's contributions when you were employed is similar to trying to take back part of your wages back. I very much doubt anyone would try to do that, even if it was possible.

 

[Tallguy]

Even if I gave you names, (which I obviously won’t) I’m unsure how you would even review it.

I don’t want names, what I’m looking for is a case summary published on the web by a Union etc who have dealt with this issue. Without some clear case history or statements from the pension provider confirming that this is possible and the circumstances, then this is just unfounded hearsay.

 

[LCC106]

Relating to the pension I think it’s referred to as dismissal under clause 9(?) 19(?) but don’t understand exactly what it means. It MAY mean that the employer keeps the company contribution element but perhaps someone who knows for sure can clarify (so don’t quote me on it!)

Also to add, a union rep cannot answer questions on an individual’s behalf but they can ask for adjournments during the meeting.

Finally it is usually stated that an employee can take a union rep/official or work colleague of their choosing, so you would not normally be allowed to take a friend from outside work with you unless the policy states it.

 

[najaB]

In the thread Misuse of Spouse travel Pass it was claimed that a TOC could reclaim their contributions to a pension fund in the event that an employee was dismissed for gross misconduct.

It’s the contributions THEY make, they do it all at the end rather than four weekly.

Ive seen it happen a few times. It only seems to apply to contributions from the TOC itself. One example was after 8 years or so which was pretty devastating for the guy.

The other was after 6 months or so of a new operator which obviously had less of an effect.

ASLEF didn’t take it to court, so who knows.

I've never heard of this outside the railway industry, and it strikes me that it would be illegal in any case. Does anyone have experience of this happening with TOC employees?

(I'll ask the mods to move the relevant posts from that thread to this one)

Edit: Quoted the wrong post initially.

 

[matt_world2004]

In the thread Misuse of Spouse travel Pass it was claimed that a TOC could reclaim their contributions to a pension fund in the event that an employee was dismissed for gross misconduct.



I've never heard of this outside the railway industry, and it strikes me that it would be illegal in any case. Does anyone have experience of this happening with TOC employees?

(I'll ask the mods to move the relevant posts from that thread to this one)

Staff misconduct and pension forfeiture

localgovernmentlawyer.co.uk

Under regulation 93 of the Local Government Pension Scheme Regulations 2013 (“the Regulations”), the former employer of a LGPS member can apply to the relevant LGPS Fund to recover or retain money owed in the following circumstances:

• The pension scheme member has committed an act of grave misconduct or a criminal, negligent or fraudulent act or omission;
• The member has, as a result, left the employment through which they were a member;
• The member owes money as a result of their misconduct, act or omission to their former scheme employer.

The former LGPS employer can recover that money or, if less, the value of all the employee’s pension benefits (subject to a few exceptions). The employer must give at least three months’ notice of the amount it intends to recover and show how this is calculated

Under regulation 91 of the Regulations an LGPS member’s former employer can also apply to the Secretary of State for that member’s pension to be forfeited where:

• The member has been convicted of an offence;
• The offence was committed in connection with the employment through which the person is a member of the LGPS;
• The member has left employment because of that offence;
• The offence was “gravely injurious” to the State or is liable to lead a to serious loss of confidence in the public service; and
• Where the former employer suffered loss, it is not able to recover that loss in another way (including under regulation 93), except after an unreasonable delay or at a disproportionate cost.

The application needs to be made within 3 months of conviction and there are various other formalities which need to be satisfied.

This is specific to the local government pension scheme I don't know if it applies to other schemes but some employees in the rail industry (eg if you work for TfL) are subject to the local government pension scheme rules I think

 

[JonathanH]

It is a lien defined as

a right to keep possession of property belonging to another person until a debt owed by that person is discharged.

If, for example, ticket office staff were dismissed for having stolen from their employer, the pension monies are the obvious place to try to repay their misdemeanor.

Not really any different from the 'proceeds of crime' provision in law.

 

[najaB]

This is specific to the local government pension scheme I don't know if it applies to other schemes but some employees in the rail industry are subject to the local government pension scheme

If, for example, ticket office staff were dismissed for having stolen from their employer, the pension monies are the obvious place to try to repay their misdemeanor.

That's different though - that is recovery of monies owed by taking them from the pension fund ("You owe us £X, we're taking it from your pension"). What was being claimed is that the former employee would have to repay all of the employer's contributions, irrespective of the amount owed to the company ("We paid £X into your pension fund, you owe us that money").

 

[Snow1964]

Never heard of this before

I know someone that was fired for second instance of low performance and they got pay in lieu of notice period, put on 3 months gardening leave (the notice period) and company continued to pay into pension through this extra 3 months pay. They did lose share options though

 

[AM9]

It is a lien defined as



If, for example, ticket office staff were dismissed for having stolen from their employer, the pension monies are the obvious place to try to repay their misdemeanor.

Not really any different from the 'proceeds of crime' provision in law.

Not quite the same. The proceeds of crime provision relates to the confiscation of assets believed to have been acquired as a result of crime. Presumably, a ticket office employee is unlikely to have stolen anywhere near as much as accrued pension entitlement from a workplace crime. I doubt that such a crime would match bank robber or drug baron levels of wealth.

 

[MotCO]

I'm struggling with this. I thought all pension contributions were paid into a separate entity/company, and were not part of the originating organisation. The pension fund has trustees etc who oversee their investment, the funding levels etc, so not sure why the originating organisation (e.g. TOC) would have access to it. Even if the originating organisation had not paid over their contributions, they are still owed to the pension fund and should not be withheld.

I'm also thinking back to Maxwell where he plundered the pension funds, but his sons had to try to make them good.

 

[matt_world2004]

Police officers can also lose their pension for violation of the official secrets act or treason.

 

[najaB]

Police officers can also lose their pension for violation of the official secrets act or treason.

That may be true, but would they be required to repay pension contributions made by their employer?

 

[matt_world2004]

That may be true, but would they be required to repay pension contributions made by their employer?

Is that the same thing basically on a defined benefit pension scheme.

 

[najaB]

Is that the same thing basically on a defined benefit pension scheme.

How so? If they have £20,000 in their bank account and get fired and thrown out of the pension scheme they will have no job, and £20,000 in their bank account.

In the scenario described by MissPway they will have to pay their employer say £10,000 - meaning that they'll have no job and £10,000 in their bank account.

 

[matt_world2004]

How so? If they have £20,000 in their bank account and get fired and thrown out of the pension scheme they will have no job, and £20,000 in their bank account.

In the scenario described by MissPway they will have to pay their employer say £10,000 - meaning that they'll have no job and £10,000 in their bank account.

No in all circumstances where the pension is lost the employer refunds the employees pension contribution.

 

[najaB]

No in all circumstances where the pension is lost the employer refunds the employees pension contribution.

That is not the scenario @MissPWay laid out. Their claim was that the company kept the employee's contribution and also required the employee to repay the company's contribution!

 

[MissPWay]

That is not the scenario @MissPWay laid out. Their claim was that the company kept the employee's contribution and also required the employee to repay the company's contribution!

No it wasn’t!

 

[najaB]

No it wasn’t!

Well, it certainly read that way. For clarity, could you spell out exactly what you mean?

 

[island]

Is that the same thing basically on a defined benefit pension scheme.

I think this is a relevant question.

Defined benefit pension scheme contributions are not necessarily made, or made in full, weekly/monthly along with the normal salary payment.

 

[MotCO]

If a (former) employee is thrown out of the pension scheme, then the scheme would have contributions (normally invested) for someone not in the scheme. It therefore makes sense for these (both employee and employer contributions) to be refunded to the TOC (originating organisation) and former member of staff.

In essence, a scheme with 100 former employers in it should have 100 employee and employer contributions. If one member is thrown out, then it should only have 99 employee and employer contributions, and a refund of contributions to both employee and employer should be made.

That should be the theory. Is the practice actually different?