Employers MUST enrol all eligible jobholders into a qualifying AE pension scheme, even if they know or think that all employees are going to choose to opt out. Employees need to have the ability to exercise their right to opt out. Employers must also arrange active membership for non-eligible jobholders and entitled workers if they exercise their right to opt in or join the pension scheme.
Opting-out is when a jobholder decides to leave the pension scheme that has been set up by the employer within a set opt-out period. The employee needs to decide within a month of becoming an active member of the pension scheme if they want to opt out. Employers must not try to persuade or encourage their employees to leave or opt out of the pension scheme. This is considered to be an inducement.
Opting out for the employee:
Jobholders can only opt out of a scheme once they have become an active member and have been given the required auto enrolment communications by their employer. Opting-out can only happen within a specific time period, known as the ‘opt-out period’. If a jobholder decides they wish to opt out, their employer must receive an ‘opt-out notice’ for the employee, which is normally provided by the pension scheme. Entitled workers who decided to exercise their right to join the pension scheme are not entitled to opt out but they do have the right to cease active membership.
There is a fear that some employees may feel pressurised into opting out of the scheme.The decision to opt out must be taken freely and without any persuasion from the employer. An opt-out notice must not be submitted until the jobholder has become an active member of a scheme. If the employee subsequently changes their mind and wishes to opt back into a scheme, they need to write to their employer informing them of this decision. If the employee decides to remain out of the scheme, the employer will automatically re-enrol them back into the pension scheme in three years time should they meet the necessary criteria. The employer must also keep records of any employee opt-outs to assist with this.
Opting out for the employer:
The employer must take action once they receive an opt-out notice for a jobholder. Employers need to check that they receive a valid opt-out notice and that it is within the relevant ‘opt-out period’. Once the employer has received a valid opt-out notice, they must stop deducting contributions immediately. The jobholder needs to be treated as if they have never been a member of the pension scheme and should be refunded any contributions that have already been deducted to date.
Employers must not accept an invalid opt-out notice, for example if the jobholder is outside of the opt-out notice period. If the employer receives an opt-out notice after the opt-out period, they must instead cease active membership for that jobholder. Jobholders who leave an occupational pension scheme after the opt-out period has ended, may also be entitled to a refund of contributions. This will depend on when their pensionable service started and the pension scheme’s own rules. The employer must also communicate and explain to the employee why it is invalid.
Employees who are pressurised into opting out are asked to inform The Pensions Regulator.
Remember all employers need to complete a Declaration of Compliance which will inform The Pensions Regulator how they have complied with their automatic enrolment duties.