Our approach to late employers and what we expect
Like all employers, your clients need to comply with their duties under automatic enrolment - it's the law.
We recognise that most employers will want to do the right thing for their staff, and we will work with your clients if they require help to get them compliant. However, if your clients ignore their duties they may face enforcement action.
Key points
- the responsibility for complying with the employer duties rests with your clients
- if your client doesn’t comply, they may face enforcement action including compliance notices, and penalty notices (fines)
- enforcement action usually starts with statutory notices and is followed by penalty notices, which we can recover through the courts
- if your client complies late, we expect them to pay back any missed contributions to put staff in the position they would have been in if they had complied on time; this may include backdating contributions to the day that the member of staff first met the age and earnings criteria to be put into a scheme
- when backdating contributions, your clients must pay all the unpaid employer contributions and their staff members must pay theirs, unless your clients choose to pay it for them. As part of any enforcement action we may require that your clients pay their staff member's contributions as well as their own
- deliberately failing to enrol eligible staff and knowingly including false information in a declaration of compliance are criminal offences and may result in prosecution
If your clients received a penalty notice, they can pay online
If your clients have received a penalty notice, they can pay it using our secure online payment service. They should have their penalty notice reference handy (shown on the front of the notice).
If your clients are late complying with their duties
Our overall approach is to educate your clients and enable them to comply with the legislation, putting them in a position to make the right choices and decisions. Your clients should remember that responsibility for being compliant rests with them.
In cases where your clients haven’t understood their duties or have been unable to comply, we'll provide support and work with them to get them compliant. However, if they have chosen to ignore their duties, we may use our powers where necessary to ensure compliance.
If your client is late complying or thinks they might be, they should tell us about it straight away. Our policy is that employers should take reasonable steps to put all workers back in the position they would have been in if they had complied on time. The employer should not profit from their mistake.
For example, if your client fails to enrol a worker into a pension scheme when they should have done, they will need to:
- write to their staff to explain how automatic enrolment applies to them
- put them in a pension scheme
- backdate contributions to the day that their staff first met the age and earnings criteria to be put into a scheme, so that their member of staff does not lose out
- your client must pay any unpaid employer contributions and their staff members must pay theirs, unless your clients choose to pay it for them. Your clients may be able to pay these in instalments, but they'll need to check with their scheme if this is an option
How we investigate non-compliance
We have a range of powers for use in our non-compliance investigations.
As well as requesting information from employers voluntarily, we're able to issue formal notices asking for information and we're able to carry out inspections at the employer's premises. We will use the courts to carry out investigations where necessary.
Our investigations are conducted to the highest standards, ensuring we regulate with fairness, transparency and consistency.
Our enforcement options
Statutory notices are sent in the post, and can direct your clients to comply with their duties and / or pay any contributions they have missed or are late in paying.
We may tell your clients that they must pay both their own and their staff member's unpaid contributions. We may also estimate and charge interest on unpaid contributions.
Penalty notices are sent in the post, and can be used to punish persistent and deliberate non-compliance.
A fixed penalty notice may be issued if your clients don’t comply with statutory notices. This is fixed at £400 and payable within a specific period. We can sometimes issue a fixed penalty without having first issued a statutory notice.
We can also issue an escalating penalty notice for failure to comply with a statutory notice. This penalty has a prescribed rate of £50 to £10,000 per day depending on the number of staff your client has.
We can issue a civil penalty for cases where your client fails to pay contributions that are due. This is a financial penalty of up to £5,000 for individuals and up to £50,000 for organisations.
We aim to fully recover all the penalties that we issue using court action if necessary.
If your clients have received a penalty notice, they can pay it using our secure online payment service. They should have their penalty notice reference handy (shown on the front of the notice).
Your client should ensure their payment is received by the date shown on the front of the penalty notice. Failure to pay the penalty can result in The Pensions Regulator bringing formal legal proceedings to recover the penalty.
We can take civil action through the court to recover penalties.
Any of your clients who deliberately fails to enrol eligible staff or knowingly includes false information in a declaration of compliance may be prosecuted.
Appealing an enforcement notice
If your client has been issued a notice they can apply to us for a review. Your client's application along with supporting documentation must be made within 28 days of the notice being issued. Upon receipt of your client's application, we will inform you when a decision can be expected.
For more information go to appealing an enforcement notice.