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    For help with auto-enrolment,
    talk to us

    Maria Stimpson                  Däna Burstow                  Neil Bowden                  Helen Powell
    Partner – Pensions              Partner – Pensions            Partner – Pensions           Senior PSL – Pensions
    Tel +44 20 3088 3665            Tel +44 20 3088 3644          Tel +44 20 3088 3431         Tel +44 20 3088 4827
    maria.stimpson@allenovery.com   dana.burstow@allenovery.com   neil.bowden@allenovery.com   helen.powell@allenovery.com

    © Allen & Overy LLP 2013
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Contents

Auto-enrolment deconstructed                            04
You need efficient HR systems to
manage auto-enrolment                                   05
Deconstructing the puzzle                               06
1. Who gets what?                                       07
2. W
    hen do I have to do what?                          11
3. What my scheme has to do                             17
4. Getting people enrolled                              20
5. Letting people exit the scheme                       24
6. Communications                                       26
7. Compliance                                           28
8. W
    hat else should I be thinking about?               32
Resources                                               35

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    Auto-enrolment
    deconstructed
    The idea behind automatic pension enrolment is                  Specialist terms
    simple – all UK workers should be in a good pension
                                                                    Where we use a particular term or expression which has a
    scheme unless they actively choose not to be.
                                                                    specific auto-enrolment meaning it is in bold. Have a look in
    Unfortunately the actual requirements applying to employers     the glossary at the end for definitions and signposts to the
    are not simple. There are a lot of individual components to     right place in this guide to find out more.
    get right, and they all interact.
    It's all too easy to focus on the staging date: what you need   Need to find out even more?
    to do is to ensure you're compliant on a ‘business as usual’
    basis. How will you operate under the regime on an ongoing      This guide is a very high level summary. It aims to
    basis? If you have distributed HR teams, are they all up        deconstruct the components to give you a reference
     to speed with the new rules?                                   guide to work with the regime over the months and years
                                                                    ahead. The Pensions Regulator’s website offers extensive
    It's up to you to apply the rules to your business and          guidance on the details of the processes. See page 35 for
    workforce, but we're here to help. We have been doing this      more resources.
    since the start; we know about the tricky bits and what can
    catch you out. Have a look at the briefings and videos on
    our auto-enrolment website and come and talk to us:
    www.allenovery.com/autoenrolment.

    © Allen & Overy LLP 2013
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You need efficient HR systems
to manage auto-enrolment
The auto-enrolment regime covers a set of processes that
each employer must apply to its own workforce. It applies
across the board to all employers (British or otherwise)
with workers ordinarily working in the UK and it applies
to almost all of those workers. Only the very lowest paid,
the very young and the very old are excluded.
The key to the whole regime is having HR and payroll
systems that sort your workers into categories at each key
assessment date, and then trigger communications and apply
processes according to those categories. Outlined below are
the main processes you need to cover.

                                        Processing             Communications
        Assessing                        automatic               to workers,
        workers to                      enrolments             pension scheme
        determine                     into a suitable         administrators and
        their rights                 pension scheme             the Pensions
                                                                  Regulator

        Maintaining
          systems                       Processing               Processing        Processing
        for records                  other admissions             opt-outs         other exits
      and compliance

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    Deconstructing the puzzle
    Each of the following sections of this guide looks at one
    component in turn.

                                            2. When do            3. What my
              1. Who                                                               4. Getting
                                             I have to          pension scheme
            gets what?                                                           people enrolled
                                             do what?              has to do

             5. Letting                                                            8. What else
            people exit                6. Communications        7. Compliance       should I be
           the scheme                                                            thinking about?

    © Allen & Overy LLP 2013
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1. Who gets what?
One of the key elements of the auto-enrolment regime is
working out which of your workers is entitled to what, and
when. The timing of the tests is discussed in When do I
have to do what? (see page 11 onwards). In this section we
look at the basic entitlements and how you work them out.

Overview of who gets what
There are three categories of worker who have rights
within the automatic enrolment regime: eligible jobholders,
non-eligible jobholders and entitled workers. Here are their
basic rights, plus details of where to find out more.

  Eligible jobholder                          Non-eligible jobholder                       Entitled worker
  Automatic enrolment into an automatic       Right to require enrolment into an           Right to require enrolment into a pension
  enrolment scheme (see page 17) with         automatic enrolment scheme with              scheme, but no minimum employer
  minimum employer contributions.             minimum employer contributions.              contributions or quality standards.
  Opt-out rights (see page 24).               If that right is exercised, opt-out right.
  Re-enrolment rights (see page 22).

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    Working out who is in which category
    and monitoring for changes

                                            NO                              Individual does not have rights
         Is the individual a worker?
                                                                          under automatic enrolment regime.
                  (see page 9)
                                                                            Consider other benefit options

                        YES

                                            NO
     Is the individual ordinarily working
           in the UK? (see page 9)

                        YES

                                            NO                                          NO
      Is the individual aged between 22          Is the individual aged 16 to 21, or
           and State pension age?                     State pension age to 75?

                        YES                                           YES

                                            NO        Is the individual earning         NO
      Is the individual earning over the
                                                        over the qualifying
              earnings trigger?
                                                       earnings threshold?

                        YES                                           YES

             Eligible jobholder                      Non-eligible jobholder                                   Entitled worker
                (see page 7)                             (see page 7)                                          (see page 7)

        Notes
        If someone in your workforce is not an eligible                  The earnings trigger for automatic enrolment
        jobholder, keep monitoring the situation for any                 is £9,440 in tax year 2013/14.
        changes – you will need to go through the test again.
                                                                         A person has no auto-enrolment regime rights if he:
        The qualifying earnings threshold is £5,668 in tax
                                                                         ––is not a worker; or
        year 2013/14. Qualifying earnings are earnings over
        the threshold, up to £41,450.                                    ––is not ordinarily working in the UK.

    © Allen & Overy LLP 2013
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Working out who is a “worker”
and “ordinarily working in the UK”

   Worker?                                                                  Ordinarily working in the UK?
   Yes, if they are under a contract (express or implied) to perform        This is not about nationality. Where is the contract based? How
   work or services personally. Trainees and apprentices, as well as        does it work in practice? Is the employment still based in the UK?
   temps/agency workers (if paid by you) can all count as workers.
                                                                            Outbound secondees may need to be covered if they would
   There is no minimum service requirement.
                                                                            ordinarily be working in the UK, ignoring the secondment -
   Officeholders and volunteers don't usually count.                        provided they are expected to return to the UK and their contract
                                                                            remains with the UK employer.
   Your contractors and consultants may need to be covered unless
   they are in business on their own account (i.e. you are a client of      Inbound secondees may not need to be covered if they are
   their business).                                                         expected to return home at the end of their secondment and their
                                                                            contract remains with their home employer.

Working out earnings for eligibility
thresholds and contributions
A worker’s rights, and the contributions payable in respect              Earnings means gross earnings, including overtime,
of him, will vary depending on what he earns during a pay                bonuses and commission and any statutory payments
reference period. This is the period by reference to which               such as sick pay/maternity pay.
you pay the worker their regular wage or salary. This may
                                                                         Qualifying earnings are a band of earnings used
differ from pay frequency.
                                                                         as the basis for assessing eligibility and contributions.
A joining date late in the pay reference period may mean                 Not everyone with qualifying earnings is eligible for
auto-enrolment is not triggered until the next period.                   auto-enrolment: only those who earn more than the
If you have a worker with multiple contracts but in reality              earnings trigger are eligible jobholders who need to
there is one employment relationship, assess earnings                    be auto-enrolled.
based on aggregate pay across all contracts.

                                                   Level at which earnings
 Pay reference period                                                                            Earnings trigger (£)
                                                   become qualifying earnings (£)
 1 week                                            109                                           182
 4 weeks                                           436                                           727
 1 month                                           473                                           787
 1 quarter                                         1,417                                         2,360
 Bi-annual                                         2,834                                         4,720
 Annual                                            5,668                                         9,440

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     Contractual enrolment: putting workers
     into pension schemes first
     Contractual enrolment is any enrolment of workers              However, there are risks to individual workers:
     outside the strict terms of the auto-enrolment regime,
                                                                    ––No automatic opt-out rights apply – the worker would
     for example, employer-initiated automatic processes for
                                                                      have to exercise the normal scheme exit option and is
     new joiners applying before the staging date. Contractual
                                                                      treated as having been a member (see page 24) unless the
     enrolment also applies where the employer over-complies,
                                                                      scheme has its own binding opt-out rule. No opt-out is
     for example enrolling all workers irrespective of whether
                                                                      automatically available from a personal pension, but a
     they are eligible jobholders or not, or enrolling workers
                                                                      right to cancel the contract may apply.
     before their automatic enrolment date.
                                                                    ––A worker with fixed or enhanced protection will
     Employers may prefer to use contractual enrolment to:
                                                                      lose their tax protected status if they join a new money
     ––Smooth salary sacrifice processes for new joiners.             purchase arrangement or accrue new benefits in a
                                                                      defined benefit scheme (see page 19).
     ––Offer the same pension provision to all workers.
                                                                    ––The option to take flexible drawdown is not available to
                                                                      members who have contributed to a money purchase
                                                                      scheme in the tax year of the declaration.
                                                                    To operate contractual enrolment you will need workers’
                                                                    consent to deductions from pay (e.g. in their contracts).
                                                                    You will still have to meet some information obligations
                                                                    under the auto-enrolment regime.

       Notes
       If you operate contractual enrolment and workers opt        membership (if any). The Government is considering
       out or leave the scheme, you may have to auto-enrol         removing this requirement, in order to reduce burdens
       them back into a qualifying scheme as soon as they          on employers and confusion for members – but for
       become eligible, even if this is as early as the next pay   the moment, standard auto-enrolment rules apply in
       reference period. This will depend on whether or not        this situation.
       they were eligible jobholders during their period of

     © Allen & Overy LLP 2013
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2. W
    hen do I have to do what?
Enrolment duties, assessment of rights, communications
and opting-in and -out rights are all tied to specific dates
and periods. In this section we look at working out the
key dates, and what you need to do for each.

Key dates
These are the key dates you need to know:

             Staging date                       Automatic enrolment date
         The date the regime                    The date auto-enrolment first
          first applies to you                 applies to an eligible jobholder

                                                        Deferral date
                                                  The date auto-enrolment               Enrolment date
         Assessment date
                                                 will apply to a worker if you    The date enrolment applies to
    The date as at which you test
                                                  postpone enrolment, for          a jobholder who opts in to
       eligibility and earnings
                                                   example to align it with           scheme membership
                                                       your payroll cycle

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     Key windows

       Transitional period                      Joining window                             Opt out period
       This applies where workers will be       The one-month period from the              The one-month period starting on
       enrolled into a defined benefit or       automatic enrolment date or enrolment      the date of actually being admitted
       hybrid scheme. Employers can defer       date during which the employer must        to membership (or later provision of
       auto-enrolment for existing workers at   ensure the individual is enrolled in an    enrolment information) during which the
       the staging date who are eligible to     automatic enrolment scheme and all         worker can opt out of membership and
       become members of the scheme,            processes are completed. Enrolment         have everything undone as if they had
       until 1 October 2017. Opt-in rights      must be effective from the automatic       never been admitted. The period is
       apply during this period.                enrolment date or enrolment date.          extended to six weeks if an invalid opt
                                                If using a personal pension scheme,        out notice is given (see page 24).
                                                enrolment only happens once the
                                                individual receives the provider’s terms
                                                and conditions and the employer and
                                                provider have entered into a minimum
                                                contribution contract (see page 23).

     Working out the automatic enrolment date
     An individual’s automatic enrolment date is the date on which all
     assessments are made and from which scheme membership begins.
     It will be whichever is the latest of these dates:

                                                       If you are using a
               Staging date
                                                       defined benefit or
      Your staging date is listed on
                                                     hybrid scheme, and
        the Pensions Regulator’s
                                                          opt to use the
     website and you should receive
                                                      transitional period,
      letters from the Regulator 12
                                                        auto-enrolment
       and three months before to
                                                          is deferred to
            confirm your date.
                                                        1 October 2017.

               Automatic                                                                           Deferral date
             enrolment date                                                                     If you are applying
         The date the worker first                                                         postponement, use the last
                                                     The jobholder’s first
           becomes an eligible                                                              day of your postponement
                                                     day at work if he is
          jobholder. Monitor for                                                           period (the date you selected
                                                       already eligible.
          changes, for example                                                                  and notified to your
          with worker pay rises                                                               jobholders as the start
              or birthdays.                                                                        of enrolment).

     © Allen & Overy LLP 2013
13

Working out the enrolment date for opting in
If a jobholder opts in to membership (see page 21), they                  as at that day). You need to make sure that
should be enrolled with effect from their enrolment date                  actual membership is arranged before the end
(provided they are still a jobholder with qualifying earnings             of the joining window.

  Normal enrolment date                                                     If you are operating postponement
  First day of next pay reference period after valid opt in notice          Enrol on whichever comes first: the deferral date for the
  received (provided jobholder has qualifying earnings as at                postponement period, or the normal enrolment date for this opt-in.
  that day).
  If an opt-in notice is given after payroll has closed for the
  period, enrol from the first day of the following pay reference
  period instead.

Using the automatic enrolment date and the enrolment date
  The automatic enrolment date is used for a variety of triggers
  and, where a jobholder opts in, the enrolment date takes its
  place in most cases.

                                                            Start of joining window:
                                                              effective start date of
    Assessment date for testing
                                                              active membership of
    the status of the individual:
                                                            auto-enrolment scheme
     age, earnings, relationship
                                                               (you must complete
           with employer.
                                                             all arrangements within
                                                                    one month).

                                                                                                         Opt-out rights don’t start
                                                                                                          immediately – they only
                                                              One month countdown                        apply once the jobholder
    Effective date for calculation
                                                               for information packs                    has actually been admitted
           of contributions.
                                                                    (see page 16).                       to the scheme or, if later,
                                                                                                              has received the
                                                                                                           enrolment information.

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     Postponing enrolment

       What is postponement?                                              Why do it?
       You can defer the auto-enrolment process for up to three months.   – To align with payroll dates and avoid part-period contributions
       You choose the deferral date.                                        (postpone to first day of next pay reference period).
                                                                          – To maximise the opt-out period before payroll
                                                                            (aiming to limit the number of opt-out refunds).
                                                                          – To help with contractual enrolment and salary
                                                                            sacrifice arrangements.
                                                                          – To avoid auto-enrolling short-term/seasonal workers (although
                                                                            they can opt in) (postpone to last possible date).

     Postponing auto-enrolment

       How do you do it?                                                  Effect of postponing enrolment
       Send a postponement notice to each affected worker                 and its limits
       (see page 16 for deadlines).
                                                                          You postpone the requirement to test eligibility for auto-enrolment
                                                                          to the deferral date.
                                                                          If a worker meets the eligibility criteria on the
                                                                          deferral date you must auto-enrol them
                                                                          (no further postponement).
                                                                          If the worker is not eligible on that date, monitor his/her eligibility at
                                                                          each pay reference period. When the worker does become
                                                                          eligible, postponement is available again.
                                                                          If the worker becomes eligible during the postponement period,
                                                                          you cannot impose a further postponement period from that date.

     © Allen & Overy LLP 2013
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When don’t I have to
enrol someone?

If you already offer a qualifying pension scheme to your
jobholders, you may not have an immediate enrolment duty for
existing members at your staging date, though you will still have
assessment duties. If it is a defined benefit arrangement, you can
defer assessment and enrolment for those eligible to join.

                                Eligible jobholders employed as                        Eligible jobholders employed on
                                at the staging date, who are                           the staging date who are entitled
                                already active members of a                            to join a qualifying defined
                                qualifying scheme                                      benefit scheme or section
                                No need to go through the enrolment process for        You can delay formal enrolment processes for
                                these workers unless and until they stop active        these workers for a transitional period ending on
                                membership. Re-enrolment duties then apply.            30 September 2017, provided they can join the
                                                                                       defined benefit arrangement at any time
          Action                                                                       throughout that transitional period.
                                                                                       The automatic enrolment date for these workers
                                                                                       moves to 1 October 2017 (unless the condition
                                                                                       above is no longer met in which case backdated
                                                                                       contributions may be required).

                                Issue notice to affected workers within two months
                                of the staging date. Confirm status of existing
                                                                                       Send out a transitional period notice to affected
  Information rights            scheme membership and explain auto-enrolment
                                will apply if active membership stops (other than by
                                                                                       jobholders before the original staging date or
                                                                                       within one month after it, or lose the option.
                                the worker’s choice) and where to get information
                                about pensions and saving for retirement.

                                Jobholders can still opt in to pension scheme
      Opt-in rights             membership if they cease to be a member of a
                                qualifying scheme (see page 18).
                                                                                       Jobholders can still opt in to pension scheme
                                                                                       membership during the transitional period.

  Notes
  If the option of using the transitional period for defined           notices right. The consequences of not continuing to
  benefit schemes interests you, talk to the Allen & Overy             satisfy all of the conditions can be expensive.
  pensions team well in advance to get the set-up and

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     Deadlines for information:
     the first notices and packs

     The employer has to provide a raft of notices and
     information to each worker and to its scheme provider
     or trustees. Each information requirement has a deadline.
     The ones below are the very first notices and packs.
     For more information on the notices, see page 27.

                                                                            Transitional period notice. If you give this notice, read reference to staging date
     Before or within one month from the staging date
                                                                            below as referring to the end of the transitional period (see page 12).
                                                                            Register with the Pensions Regulator once all postponement periods have
     Within four months of the staging date                                 ended and provide a breakdown of your compliance with the auto-enrolment
                                                                            regime by category of worker.
                                                                            Postponement notice (see page 14). If you give this notice you could include the
                                                                            rights packs below, or wait until the end of the deferral period.
                                                                            Eligible jobholder’s rights pack.
     Before or within one month of the staging date or if later the
     first day of work or the first day the worker becomes a jobholder      Non-eligible jobholder’s rights pack (only needs to be given the first time the
                                                                            individual becomes a jobholder).
                                                                            Entitled worker’s rights pack (only needs to be given the first time the individual
                                                                            becomes an entitled worker).
     Before or within two months of qualifying as a jobholder               Active members of qualifying schemes only: active member rights pack.

     These packs have to be given by the employer when the
     individual qualifies, if not given before (for example with
     the postponement notice). This obligation applies again at
     re-enrolment (see page 22).

                                                                            Eligible jobholder’s rights pack and information about the scheme
     Before or during the joining window (see page 12)
                                                                            and contributions.
                                                                            Non-eligible jobholder’s rights pack.
     Within one month of first qualifying, or deferral date if applicable
                                                                            Entitled worker’s rights pack.
     Within joining window                                                  Jobholder’s information (give to scheme provider or trustees, as applicable).
     Within two months of date that would be automatic
                                                                            Active members of qualifying schemes only: active member rights pack.
     enrolment date

     The trustees or scheme provider must
     give the following information:

                                                                                                   One month from the trustees receiving the
     Occupational pension scheme              Normal scheme joining information pack               jobholder’s information from the employer
                                                                                                   (statutory disclosure requirements).
                                              Terms and conditions of the pension contract
                                                                                                   Employer must arrange for this to happen within
     Personal pension scheme                  (plus normal key features information required by
                                                                                                   the joining window.
                                              the Financial Conduct Authority)

     © Allen & Overy LLP 2013
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3. What my scheme has to do
Depending on the category of worker, you must provide                   transitional period for defined benefit offerings (see page
a scheme which is either an automatic enrolment scheme,                 12) a defined benefit qualifying arrangement should stay
a qualifying scheme or a UK tax-registered scheme.                      open to them.
The quality tests are just minimum requirements.
                                                                        If complying with a joining notice to enrol an entitled
Think about whether you want to offer more
                                                                        worker, you need to offer a UK tax-registered pension
generous structures to some or all of your staff.
                                                                        scheme; an entitled worker who is already an active
For auto-enrolment and enrolment of opting-in                           member of such a scheme has no right to join a
jobholders you need an automatic enrolment scheme.                      different scheme.
To be exempt from the need to enrol someone into an                     This section looks at what makes a scheme an automatic
automatic enrolment scheme, they should be in a qualifying              enrolment scheme or a qualifying scheme.
scheme (see page 18) or, if you are taking advantage of the

Automatic enrolment schemes and qualifying schemes

  Auto-enrolment scheme:
  UK scheme test
                                                                                 A scheme administered in
  Qualifying scheme.                                                           the European Economic Area
  The benefit structure is open to existing members                             can qualify as an automatic
  and new enrolment.                                                                 enrolment scheme.
  Nothing in the rules prevents automatic enrolment                               Additional regulatory and
  (e.g. worker, employer, trustee or provider consent).                          structural conditions apply
  Nothing in the rules requires the worker to make a choice
  e.g. investment selection, or to provide any information.

  Qualifying scheme: UK scheme test
  UK tax registered occupational or personal pension scheme.
                                                                                  A scheme administered
  All schemes: satisfy the relevant quality test (see page 18 for the            outside the UK can qualify
  options) and have evidence of compliance (the evidence required
  depends on the option).
                                                                                  as a qualifying scheme.
                                                                                  Specific additional tax,
  Personal pension schemes only: formal agreements for                             regulatory and benefit
  employer contributions and any worker contributions, plus
  direct pay arrangements.
                                                                                     requirements apply

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     Qualifying schemes: quality tests
     Whatever pension arrangement you offer to a particular
     jobholder, it must satisfy one of the quality standards.

     Defined benefit or hybrid schemes                                          Career average schemes
     Check that the scheme is either contracted-out or that it                  Make sure the scheme also provides for revaluation of
     passes the test scheme standard.                                           earnings during active membership. Revaluation can
                                                                                be discretionary but must be funded (minimum of limited
     The defined benefit test scheme standard is a notional
                                                                                price indexation up to 2.5%), and included in the scheme’s
     test scheme providing a pension of up to 40/120ths of
                                                                                funding plan.
     average qualifying earnings in the three tax years before
     retirement. For the tax year 2013/14, qualifying earnings
     are gross earnings in the band £5,668 to £41,450.

     Defined contribution schemes
                                              Minimum total contribution   Minimum employer contribution   As a percentage of
                Main quality test
                                              8%                           3%                              Qualifying earnings
                                                                                                           Pensionable pay (which must be at least
                                Tier 1        9%                           4%
                                                                                                           basic pay)
                                                                                                           Pensionable pay (which must be at least 85%
      Alternative tests         Tier 2        8%                           3%
                                                                                                           of total pay for the relevant group of workers)

                                Tier 3        7%                           3%                              Total pay

     Defined contribution schemes: phasing-in contributions
     Money purchase schemes don’t have to require                               Employers and employees can phase in
     contributions at the full rate until October 2018.                         contributions gradually.
                                                       Main quality test        Tier 1                Tier 2                      Tier 3
                               Applies from
        Full requirement                               Total 8%                 Total 9%              Total 8%                    Total 7%
                               1 October
                                                       Employer 3%              Employer 4%           Employer 3%                 Employer 3%
                               2018 onwards
                               From your
                                                       Total 2%                 Total 3%              Total 2%                    Total 2%
                               staging date to
                                                       Employer 1%              Employer 2%           Employer 1%                 Employer 1%
                               30 September 2017
        Phasing-in period
                               1 October 2017 to       Total 5%                 Total 6%              Total 5%                    Total 5%
                               30 September 2018       Employer 2%              Employer 3%           Employer 2%                 Employer 2%

     Remember that if your scheme meets the quality                             before the end of the first or second phasing-in period.
     requirements now, but allows contributions below the full                  If you are increasing minimum member contributions,
     rates, you will need to increase minimum contributions                     this will require consultation.

       Notes
       Basic pay means earnings ignoring any commission,                        qualifying earnings) or one of three alternative tests based
       bonuses, overtime or similar payments. It can exclude                    on different pay definitions – in most cases, employers will
       car/clothing allowances but includes geographical                        have to self-certify that their scheme meets the standards.
       weighting payments.                                                      To do this, you must follow a certification process set out
                                                                                in DWP guidance (see page 35).
       Defined benefit or hybrid schemes can be certified as
       meeting the quality test by the employer (in straightforward             Talk to us if you need to use a non-UK scheme for
       cases) or by an actuary. Defined contribution schemes can                auto-enrolment purposes.
       meet either the main quality test (which is based on

     © Allen & Overy LLP 2013
19

Before you get workers enrolled
WARNING!
Before you go ahead and enrol someone, check if               Talk to us if you have workers with tax protection – there
they have any special pension tax protection.                 are a number of things you could do to make life easier for
                                                              you and your highly-paid workers.
Workers with fixed protection or enhanced protection
of their existing pension entitlements above the normal tax   Remember that the category of workers who may have
allowances will lose that protection if they become an        protected status will widen from 6 April 2014 as some
active member of a pension scheme, unless they opt out        individuals claim ‘fixed protection 2014’.
again within the opting-out window. At the moment you
are still technically required to enrol these workers, but
the Government proposes to remove that obligation in
the future.

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20   Auto-enrolment deconstructed | 2013

     4. Getting people enrolled
     This section covers the process of getting people into
     schemes, whether automatically or on request.

     Arrangements for enrolment: jobholders
     Whether you are automatically enrolling an eligible
     jobholder or enrolling an opting-in jobholder, the process
     is the same during the joining window.

                                     Step 1
         Send information pack about the scheme and workers’ rights to
        jobholder (see pages 16 and 27) and send jobholder’s information
      to the trustees/scheme provider to set up membership (see page 27).
           One month window to complete this and the following steps.

                                     Step 2
                      Start collecting worker contributions.

                                     Step 3
        Do whatever is needed to achieve membership for the jobholder
          with effect from the automatic enrolment date (or deferral date
                          or enrolment date as applicable).
      For example, enter into contribution agreement with personal pension
       provider and get provider to give terms and conditions to jobholder.

                                     Step 4
            Record the date you achieve membership for the worker:
          opt-out window starts from this date or (if later) date on which
              information pack in Step 1 is received (see page 12).

     © Allen & Overy LLP 2013
21

Opt-ins and requests to join

You must tell jobholders and entitled workers about their       Initial checks
rights to be admitted to pension saving (see page 7). If you
                                                                   Is the worker a jobholder or an entitled worker?
get a joining notice from a non-eligible jobholder asking
to opt into your scheme or from an entitled worker asking       	Is the notice valid (in writing or by email and signed
to join pension saving, what you have to do depends on            or personally submitted)?
the worker’s status.
                                                                   Is the worker already an active member of a scheme?
                                                                   Has the worker applied before?
                                                                !	
                                                                  Don’t enrol if: the worker is already an active member
                                                                   of a qualifying pension scheme (jobholder) or UK
                                                                   tax-registered scheme (entitled worker) or already
                                                                   scheduled for auto-enrolment or re-enrolment.
                                                                !	
                                                                  Don’t enrol (unless you want to) if: the worker has
                                                                   previously given opt-in notice or joining notice in the
                                                                   last 12 months and subsequently left the scheme.
                                                                	Good to go? Apply normal auto-enrolment process
                                                                  (see page 20) from enrolment date (see page 12)
                                                                  for jobholders. See page 22 for the process for
                                                                  entitled workers.

  Notes
  A worker may have flexed down below minimum                  require contributions to be increased to the
  contribution levels: an opt-in request would                 auto-enrolment minimum.

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22   Auto-enrolment deconstructed | 2013

     Admitting entitled workers

     Workers’ rights                                               Process for employer
     Right to join a workplace pension scheme (UK                  Contact trustees/provider of scheme to give information
     tax-registered but not necessarily a qualifying scheme        about the worker and check conditions for entry. Set up
     or auto-enrolment scheme) at any time while still an          direct pay arrangements for worker if offering personal
     entitled worker.                                              pension plan. No particular deadlines specified.
     No right to employer contributions.                           Choose whether or not to make employer contributions.
     Conditions: worker must give a valid joining notice to the    Keep record of joining notice.
     employer, and comply with all the joining requirements of
                                                                   Monitor the worker for any change in status to become
     that scheme.
                                                                   a jobholder. Assess pay on the first day of each pay
     If worker leaves the scheme, employer is not bound to         reference period.
     honour a second request within 12 months.

     Re-enrolment duties
     Workers can leave a pension scheme at any time.               On the re-enrolment date
     Whether the exit is through normal scheme processes
                                                                   Re-enrol anyone who is at that time an eligible jobholder,
     or via the temporary opt-out facility (see page 25),
                                                                   but not an active member of a qualifying pension scheme
     the auto-enrolment regime doesn’t stop applying.
                                                                   (for example because they have exited the scheme,
     If a jobholder continues in service but (without any action   or reduced their contributions below the level required
     on his part) stops being an active member of a qualifying     for a qualifying scheme).
     scheme, the employer must re-enrol him the next day.
     Each employer must also set a re-enrolment date within a      Exceptions
     window from three months before, to three months after,
     the third anniversary of their staging date.                  Jobholders who opted out of membership of a qualifying
                                                                   scheme after being enrolled, or voluntarily ceased
                                                                   membership, in the 12 months before the re-enrolment date.

     © Allen & Overy LLP 2013
23

Getting contributions right

Employer and worker contributions are a key component        Operating payroll deduction immediately
of auto-enrolment.
                                                             Contributions are due from and in respect of an enrolling
                                                             jobholder from their automatic enrolment date, or
Contribution documentation for GPP                           enrolment date as applicable. That means operating
If you’re using a group personal pension, you need three     deductions from pay from the end of the pay reference
separate agreements to cover contributions:                  period in which enrolment is treated as occurring, even
                                                             if membership has not yet been established with the
––Direct payment arrangements between employer and
                                                             pension scheme.
  worker to deduct contributions and pay provider.
––Agreement between employer and provider for employer
                                                             Calculating contributions
  to pay at least minimum employer auto-enrolment
  contributions for the worker.                              Contributions should be calculated from the automatic
                                                             enrolment date, or enrolment date as applicable. This can
––If the employer is not paying the full minimum
                                                             mean payments for part of a pay reference period.
  contribution (see page 18), an agreement between the
  provider and the worker for the shortfall.
                                                             Normal deadline for contributions
Consent to deductions of worker                              19th day of month following month of payroll deduction
                                                             (22nd if paying electronically).
contributions from pay
You don’t need specific written consent from the worker
for deductions from pay following automatic enrolment or
                                                             Deadline for contributions during the opt
enrolment to comply with an opting in or joining notice.     out period
You do need consent if using contractual enrolment into a    Can be extended to end of second month following month
contributory scheme.                                         of payroll deduction.

Contribution documentation for                               Delayed and unpaid contributions
occupational pension scheme                                  Trustees and providers are required to monitor
                                                             contributions, chase late payments and report serious
This is the pension scheme’s schedule of contributions or
                                                             breaches to the Pensions Regulator.
payment schedule. It documents contribution amounts and
timetable. Should you change the schedule to cater for opt
out periods? (see page 25).

  Tip
  Sorting out refunds from the scheme is complicated for     until the worker’s right to opt out has expired.
  everyone concerned and deadlines are tight.                Don’t forget to change your schedule of contributions
                                                             or payment schedule accordingly if you are offering
  Think about agreeing with the scheme provider or
                                                             an occupational scheme.
  trustees a delayed payment date for contributions

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     5. Letting people exit the scheme
     Workers cannot be compelled to remain active members
     of a pension scheme, and can stop active membership at
     any time by notice to the trustees or scheme provider.
     Their rights following that exit depend largely on how long
     they have been an active member. However, jobholders
     enrolled via automatic enrolment or via an opt-in notice
     have a unique (but temporary) right to exit and have the
     whole enrolment process undone and treated as not
     having taken place.

     Workers’ rights to exit
                                              Even if workers ask not to join, the employer is still bound to enrol them if they are
                Before enrolment              eligible jobholders.

                                              Follow opt-out process (see page 25).

                                              Refund worker contributions.
              During opt-out period
                                              Cancel any applicable salary sacrifice.

                                              Enrolment duty applies again at the next re-enrolment date (see page 22).

                                              Follow scheme exit process (e.g. notice to trustees, provider and/or employer).

                                              Member of group personal pension or NEST:
                                              pension preserved, but available for transfer from personal pension (not currently available from
               After opt-out period           NEST). No refund available.
         (at any time if entitled worker or
           using contractual enrolment)
                                              Member of occupational pension scheme:
                                              – if less than three months' membership, refund of worker contributions if scheme permits.
                                              – over three months and under two years: refund or transfer payment.
                                              – otherwise, pension preserved but available for transfer. Refund option expected to be
                                                 removed in 2014.

     © Allen & Overy LLP 2013
25

Opting out

The opt-out period opens when the worker joins                  It closes one month later
the scheme (or, in a group personal pension plan,
                                                                If the employer tells the worker the first notice
when the provider sends them information on terms
                                                                was invalid the worker has a short extension,
and conditions), or, if later, when the worker is
                                                                to six weeks, to give a second opt-out notice.
actually given enrolment information (see page 27).

Jobholder                                                       Employer
––Contact trustees (or provider in a group personal             ––Check the notice is valid. If not, tell the worker
  pension) to get an opt-out form.                                what’s wrong so they can try again.
––Give notice to opt out before the end of the                  ––Stop deducting worker contributions and notify
  opt-out period to employer.                                     the trustees or provider.
––To be valid, the notice must either be in writing and         ––Pay refund of amount of worker contributions
  signed, or electronic with a declaration that it has been       to worker.
  made by the jobholder personally.
                                                                ––Record the opt-out for future reference.
                                                                ––Re-enrol the worker on the next re-enrolment date
                                                                  if eligible (see page 22).

Dealing with refunds after an opt-out
If a jobholder opts out during the opt-out period,              You will be due a refund from the scheme of any
the employer must pay a refund of the jobholder’s               contributions actually paid over to the scheme; however,
own contributions (subject to appropriate tax).                 you should consider changing your normal contribution
                                                                transmission patterns for jobholders during the opt-out
If you receive a valid opt-out notice, pay the refund to the
                                                                period to avoid a potential mismatch in timing of refunds
jobholder within one month from the date on which you
                                                                (see page 23).
receive the notice. If you receive the notice after payroll
has closed for the pay reference period, make the payment       If the worker exits the scheme after the opt-out
by the last day of the second pay reference period after the    window has closed, normal rules apply on refunds
date on which notice is given.                                  or preserved rights.

  Notes
  The option to opt out of membership and undo the             (although the scheme may have its own opt-out rule
  process does not apply to an entitled worker who has         to provide similar flexibility).
  been admitted to membership; nor does it apply to
                                                               NB: you should consider changing your scheme rules
  someone who is contractually enrolled (see page 10)
                                                               to allow this.

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26   Auto-enrolment deconstructed | 2013

     6. Communications
     The auto-enrolment regime relies on a network of notices     Remember that these are in addition to all the normal
     and information going to members and other parties.          communications that a pension scheme might provide
     We’ve set out the key events when you will need to provide   to its members (investment options, scheme booklets,
     information – or might want to communicate about the         invitations to nominate dependants and so on).
     process – in the table opposite, with a note of where
     you can find details about what the content should be.
     You’ll find the detailed guidance notes referred to
     below on the Regulator’s website (see page 35).

     © Allen & Overy LLP 2013
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Information packs and notices: what and when
Trigger                            Resource                                      Deadline

Pre-staging date                   DWP website (see page 35)                     Optional

Transitional period                Guidance note 3B                              One month from staging date

Postponement (generic or           Guidance note 3A                              One month from staging date or
tailored notice)                                                                 auto-enrolment date

Staging date/later assessment      Eligible jobholder: guidance note 5           One month from automatic enrolment date
– workers who are not active
members                            Non-eligible jobholder: guidance note 3C      One month from date right to opt in applies

                                   Entitled worker: guidance note 3C             One month from date right to join applies

Active members at staging date     If not a jobholder: no information require-   No requirement
                                   ment. Assess at each pay reference period

                                   If member is or becomes a jobholder:          Two months from staging date, or date
                                   guidance note 3C                              worker becomes a jobholder

Information to scheme about        Guidance note 5                               One month from automatic enrolment date
individual’s enrolment                                                           or enrolment date

Enrolling into GPP                 Guidance note 5                               One month from automatic enrolment date
                                                                                 or enrolment date

Registration                       Online registration via TPR website           Four months from staging date

Non-eligible jobholder opting in   Guidance note 6                               One month from enrolment date

Entitled worker joining            Guidance note 6                               No specific time limit for providing
                                                                                 information to trustees/provider

Opt-out                            See guidance note 7                           No specific requirement to confirm opt-out
                                                                                 and refund but good practice to do so

Re-enrolment                                                                     Information requirements as above but
                                                                                 could adjust to refer to re-enrolment

 Notes
 All of these packs and notices must be given in              Go to the communications section of the Additional
 writing or by email. You can’t just rely on poster           resources on the Regulator’s website pages for help with
 displays or a website.                                       writing to workers about auto-enrolment.

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28   Auto-enrolment deconstructed | 2013

     7. Compliance
     The Pensions Regulator is the primary policeman of
     auto-enrolment, although employment law and financial
     services regulation also play their part. The Regulator has
     published its proposed strategy for delivering employer
     compliance. If the Regulator has any queries about
     compliance, you can expect an initial informal approach.
     If matters escalate, the Regulator may issue a warning letter
     and use its powers of inspection and information gathering
     before proceeding to the various statutory powers to
     enforce compliance and punish non-compliance.
     Although criminal sanctions are available, we don’t
     expect them to be the first port of call.

     © Allen & Overy LLP 2013
29

Worker protection

                           Prohibited
                                                 Inducements to             Right not to           Right not to be        Contracting out of
Banned behaviour          recruitment
                                                     opt out              suffer detriment        unfairly dismissed       auto-enrolment
                            conduct

What can’t the        Suggest applicants       Any action with the       Subject workers to       Dismiss someone         Agree with worker
employer do?          will be screened         sole or main purpose      any detriment if they    for an auto-            to exclude or limit
                      depending on their       of inducing a             try to enforce their     enrolment-related       auto-enrolment rights
                      opt out intentions.      jobholder to opt out      auto-enrolment rights.   reason. Dismissal is    or prevent a worker
                      Includes adverts,        or anyone to leave                                 automatically unfair.   who has suffered
                      job description,         the scheme (unless                                                         detriment bringing
                      contract offers,         they are re-enrolled                                                       proceedings.
                      reference requests.      the next day).

                      Protected: anyone        Action doesn’t
                      who could become         have to be
                      eligible for enrolment   successful – breach
                      during employment.       is based on intention
                                               not outcome.

What happens if the   Compliance notice:       Compliance notice         Complaint to             Worker can complain     Agreement is
employer breaches     order employer to        ordering employer to      employment tribunal.     to employment           void (unless it is
the ban?              take steps to remedy     take steps to remedy                               tribunal – no           a compromise
                      the breach or prevent    the breach.                                        qualifying period of    agreement in relation
                      it being repeated.       Notice can require                                 continuous service      to proceedings).
                                               payment of unpaid                                  is required.            Employer cannot
                      Penalty notice for       relevant contributions.                                                    recover any payment
                      contravention or                                                                                    made under
                      failure to obey          Time limit: six                                                            the agreement.
                      compliance notice.       months from
                      Fine of up to £5,000     complaint or four
                      depending on             years from date
                      employer size.           employer is notified
                                               of investigation.

                                               Penalty notice for
                                               failure to obey
                                               compliance notice.
                                               Fixed penalty £400.
                                               Escalating penalty up
                                               to £10,000 per day
                                               depending on breach
                                               and employer size.

 Notes
 These protections came into effect on 1 July 2012.                      sole or main purpose of encouraging or persuading a
                                                                         worker to opt out of auto-enrolment. Talk to us if you
 Flex packages or offers of cash alternatives to pension
                                                                         have any concerns about your benefit packages.
 contributions could be inducements, if offered with the

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30   Auto-enrolment deconstructed | 2013

     Other safeguards

     Ending active membership or qualifying                           Failure to comply
     scheme status                                                    A deliberate failure to comply with key auto-enrolment
     Causing a jobholder to stop being an active member of            duties is a criminal offence (potential penalties: fines or
     a qualifying scheme (except through termination of               imprisonment). Directors and officers can be liable.
     employment or worker’s request), or causing the scheme
     to cease to qualify, is a potential breach of employer duties.   Non-payment of contributions
     Enrol again from the next day.
                                                                      Accuracy and flow of contributions to be monitored
                                                                      by trustees and providers. The Pensions Regulator can fine
     Whistleblowing                                                   an employer (up to £10,000 per day). Civil penalties up to
     Workers who make a protected disclosure (whistleblowing)         £5,000 (individuals) or £50,000 (organisations) may apply.
     about a breach of auto-enrolment duties will have
     protected status.

     Keeping records about workers
     The employer must keep auto-enrolment records about its          For entitled workers
     workers and be able to produce them to the Pensions
                                                                      ––Effective date of joining, joining notice.
     Regulator when required.

     For jobholders and workers who                                   For all workers for whom
     become scheme members                                            postponement is used
                                                                      ––Name, NI number and the date the notice
     ––Name, NI number, date of birth.
                                                                        was given to the worker.
     ––For each relevant pay reference period, gross qualifying
       earnings and contributions payable (employer and
       aggregate) plus dates contributions were paid.

     For jobholders
     ––Auto-enrolment date, opt-in or opt-out notices,
       contributions to which member is entitled under
       scheme rules.

     © Allen & Overy LLP 2013
31

Keeping records about pension schemes

The employer must also keep records about the schemes
it is using for automatic enrolment.

For an occupational scheme                                    For a personal pension scheme
––Employer pension scheme reference, scheme                   ––Employer pension scheme reference, provider
  name and address.                                             name and address.
––DB schemes only: contracting-out certificate or             ––Non-UK schemes only: address of scheme and
  evidence scheme meets test scheme standard.                   name of applicable regulatory authority.
––Non-UK schemes only: the address of the scheme and
  name of the applicable regulatory authority.

  Notes
  If you have used the defined contribution certification    and the evidence underlying it for six years from the
  process to certify that your scheme meets the quality      end of the certification period.
  tests for auto-enrolment, you must keep the certificate

Keeping records: the scheme provider/trustee’s duties
The trustees or provider of the pension scheme must also      Keeping records: how long for?
keep records and be able to produce them to the Pensions
                                                              Most information has to be kept for six years
Regulator when required:
                                                              (although schemes may need to keep appropriate
––Active members: name, date of birth, NI number,             information longer, for pension scheme administration
  gender, residential address, joining date, date ceased      purposes). Exceptions to the six-year rule are:
  membership (if relevant), membership status.
                                                              ! scheme quality certificates and underlying evidence
––Jobholders who opt out: name and date scheme was              (see above)
  informed by employer of jobholder’s decision to opt out.
                                                              ! opt-out records, which must be kept for four years.
––Employer pension scheme reference.

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32   Auto-enrolment deconstructed | 2013

     8. W
         hat else should I be
        thinking about?
     The auto-enrolment regime isn’t static, and the UK
     pensions landscape is changing around it. There are a
     number of areas to watch out for.

      Looking into the future
      As at the time of writing ( June 2013), the government is      Restriction on refunds
      looking at a range of changes to make auto-enrolment
                                                                     Refunds for early leavers from occupational money
      work more smoothly and to tighten up various
                                                                     purchase pension schemes are expected to stop in
      requirements. Keep an eye out for these changes:
                                                                     2014 (refunds for opt-outs will continue).

      Simplification
                                                                     Thresholds
      –– Aligning contractual enrolment and auto-enrolment to
                                                                     Thresholds for qualifying earnings and the earnings trigger
         allow employers to hold back contributions during a
                                                                     will change each year, requiring systems to be recalibrated.
         contractual opt-out period, and allowing members who
         opt out of contractual enrolment not to be immediately
         auto-enrolled if they become eligible shortly afterwards.   Protection
      –– Releasing some workers from enrolment, such as              The government plans to restrict account charges such
         workers with tax protection (see page 19).                  as consultants’ fees passed on by employers and higher
      –– More flexibility on how pay reference periods are           charges once a worker stops being an active member.
         defined, to allow employers to align these with tax
         periods for normal payroll processes.                       Small pot transfers
      –– Extending the joining window to help with                   Any early leaver’s money purchase account worth less than
         workers who have variable pay.                              a specified threshold (probably £10,000) may have to be
                                                                     transferred to the worker’s next automatic enrolment
      Business transfers involving TUPE                              money purchase scheme to build up a “big fat pot”.

      Requirement on the receiving employer to provide
      minimum pension accrual post transfer could be more
      closely aligned with AE.

     © Allen & Overy LLP 2013
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www.allenovery.com
34   Auto-enrolment deconstructed | 2013

     Final checklist
     Beyond the immediate auto-enrolment issues, there are a     	Check standard terms and conditions of employment.
     number of other areas you may need to review and adapt        What needs to be changed?
     to the new regime. Here’s a checklist of employer issues,
                                                                 	Train HR team on recruitment constraints, employee
     but think about your schemes too – what do your trustees
                                                                   protections, enrolment duties and tax protection issues.
     need to do? We have been helping the trustees of
     numerous pension schemes tidy up their arrangements to      	Revisit your payroll/flex provider/administration
     get the scheme ready for auto-enrolment. Scheme rules,        agreements. What needs to be changed?
     member communications, administration agreements and          Data protection, breach reporting and indemnity
     default options all need to be reviewed.                      cover all need to be checked.
                                                                 	Risk benefits: do you need to change
                                                                   insurance arrangements?
                                                                 	Review your internal systems: establish protocols
                                                                   on turnaround times for auto-enrolment duties,
                                                                   record keeping and contribution arrangements with
                                                                   trustees/provider.
                                                                 	Salary sacrifice and flex need to work around opt-out
                                                                    rules. What needs to be changed?

     © Allen & Overy LLP 2013
35

Resources

Pensions Regulator guidance                                Allen & Overy guidance
The Pensions Regulator’s auto-enrolment webpages           Our collection of briefing notes, alerts on developments in
have an extensive collection of step-by-step guidance      auto-enrolment, and our series of short video briefings on
notes, flowcharts, resources for employers and             tricky issues around auto-enrolment will keep you up to
templates to follow.                                       date as the regime develops:
www.thepensionsregulator.gov.uk/automatic-enrolment.aspx
                                                           www.allenovery.com/autoenrolment

DWP guidance                                               Allen & Overy advice
The Department for Work and Pensions has set out
                                                           For help with auto-enrolment design and compliance,
guidance on certifying your pension scheme as meeting
                                                           talk to us. We know how to solve the really tricky stuff.
the quality standards to be a qualifying scheme:
––Defined contribution schemes: www.dwp.gov.uk/docs/
  money-purchase-schemes-guidance-2012.pdf
––Defined benefit and hybrid schemes: www.dwp.gov.uk/
  docs/auto-enrol-guid-emp.pdf
The DWP also has a range of resources to help you
communicate changes to your workers: www.dwp.gov.uk/
policy/pensions-reform/workplace-pension-reforms/
toolkit/

Auto-enrolment terms
 Expression                   Page of guide                Expression                      Page of guide
 assessment date              11                           non-eligible jobholder          7
 automatic enrolment date     11                           opt-out notice                  25
 automatic enrolment scheme   17                           opt-out period                  24
 contractual enrolment        10                           opting out                      25
 deferral date                11                           ordinarily working in the UK    9
 earnings                     9                            pay reference period            9
 earnings trigger             8                            postponement                    14
 eligible jobholder           7                            qualifying earnings threshold   8
 enrolment date               11                           qualifying scheme               18
 entitled worker              7                            staging date                    11
 joining notice               21                           transitional period             12
 joining window               12                           worker                          9

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