In a recent decision, the
Key facts
The individual in this case started a new job in
In
The employer did not provide
When the individual finally got access to his online payslips in
Key issues
The individual challenged HMRC's decision and argued that he had opted-out in time, on the basis that his automatic enrolment opt-out window had not started due to the fact that he had never actually been "given" the prescribed information about his enrolment into the scheme (as required by Regulation 9 of the Occupational Pension Schemes (Automatic Enrolment) Regulations 2010 (the AE Regulations)). He argued this on two grounds, namely, that:
- he had not received the relevant information; and
- in any event, the information sent to him was incorrect, as it contained an incorrect automatic enrolment date.
He argued that for notification to have occurred, he must have been given a genuine opportunity to opt out of the scheme; the technical issues he had experienced with his work emails and the fact the email had the appearance of a junk/spam email meant this had not occurred. In any event, the fact the information contained in the email was incorrect, meant it was invalid.
HMRC contended that notice had clearly been given for the purposes of the Auto-enrolment Regulations and that it was the individual's fault he had not read this. HMRC also argued that the fact the email contained incorrect information did not impact the obligation for the individual to submit a valid opt-out notice within the statutory time limit.
Decision
In relation to the first issue, the tribunal judge held that the information had been "given" on the basis that, based on the evidence, it was likely the emails sent by
Notwithstanding this, the tribunal judge held that the individual's opt-out window had not started due to the fact that the enrolment date stated in the emails was incorrect. The emails from
As matter of principle, the judge held that if the auto-enrolment information provided is incorrect, any time limit expressed to run from that time cannot start to run until the correct information has been provided. This meant that the individual's opt-out window had not begun meaning his request to opt-out of the scheme had been made in time and, crucially, he could still register for fixed protection.
Comment
For the individual concerned, this was clearly a good outcome as it meant he could still register for fixed protection as he had always intended. This decision may also help other individuals who have failed to opt-out in time, where it can be shown that there was an error in the auto-enrolment information provided at the outset.
However, this may also raise concerns for auto-enrolment schemes and providers as it raises the prospect that an individual may still have a right to opt out months, or potentially even years, after they have been automatically enrolled, if it is known (or can be shown) that an element of the initial information provided to them was incorrect.
On the positive side, schemes and providers can take comfort from the fact that information sent to an email address known to be used by an individual will generally be considered to have been "given", even if the individual fails to read it or it ends up in their junk folder.
This decision was handed down on
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
Exchange House
EC2A 2HS
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