We have recently been contacted by an employee who had not been made redundant from the company we were dealing with, but had transferred under TUPE. He had looked into his pension pot and found the contributions deducted from his salary in the last 3 years had not been paid into his pension pot.

The debate is now as to whether the missing money should be claimed as a pension contribution or as an unlawful deduction of wages. The points to consider are:

For:

The deductions were shown as pension on the employee’s payslips

Against:

If the employee was not part of the company’s scheme he may not be able to claim as pension

There would be a maximum limit of 12 months claimable

For:

The claim may rank as wages for an ERA claim

Against:

Only 8 weeks max would be claimable

The claim may not qualify as unlawful deduction of wages

It’s a good reminder that not every situation is clear-cut, and it’s important to work out what approach will be in the employee’s best interests.

A further factor that comes into play here is that the employee may be entitled to make a whistleblowing disclosure. We have advised the IP concerned that they should consider making a whistleblowing submission. At some level the payroll should have been reconciled as at least one employee’s pension funds was missed.

The IP should certainly consider this as an issue to be raised in the Directors’ Conduct Report.