Energy Act 2004 (c. 20)

SCHEDULES

SCHEDULE 8 U.K. Pensions

Modifications etc. (not altering text)

C1 Sch. 8: power to amend conferred (26.10.2023) by Energy Act 2023 (c. 52), ss. 315, 334(2)(o)

Part 4 U.K. Other transfers

Persons entitled to pension protection under paragraphs 10 and 11 U.K.

9 (1) For the purposes of this Part of this Schedule a person is entitled to pension protection in relation to a nuclear transfer scheme or any transfer arrangements if— U.K.

(a) sub-paragraph (2) applies to him; and

(b) he is a person falling within sub-paragraph (5).

(2) This sub-paragraph applies to a person if—

(a) in accordance with the scheme or arrangements, a transfer mentioned in sub-paragraph (3) occurs; and

(b) immediately after the time at which that transfer takes effect, the person’s employment is for NDA purposes.

(3) The transfers referred to in sub-paragraph (2) are—

(a) a transfer of the person’s employment to the UKAEA, the NDA, a publicly controlled company or a private sector employer;

(b) where his employment is not so transferred, a transfer of securities of, or voting rights in, a company by which he is employed or a company of which such a company is a subsidiary.

(4) For the purposes of sub-paragraph (2) a person’s employment is for NDA purposes if it is—

(a) employment with the NDA or a subsidiary of the NDA; or

(b) other employment the duties of which consist wholly or mainly of duties relating to matters connected with the carrying out by the NDA of its functions.

(5) A person falls within this sub-paragraph if—

(a) he is a person to whom sub-paragraph (7) applies immediately before the relevant time;

(b) he is (in a case where the relevant time is on or after the designated date) a person to whom that sub-paragraph has applied throughout the period beginning immediately before the designated date and ending immediately before the relevant time;

(c) he satisfies the employment condition at the relevant time; and

(d) in consequence of the transfer scheme or transfer arrangements—

(i) he is precluded from being, or becoming, eligible to participate in the nuclear pension scheme by reference to which that sub-paragraph applies to him immediately before the relevant time; or

(ii) his employer is entitled to do something the effect of which will be so to preclude him.

(6) For the purposes of sub-paragraph (5) it is immaterial that the condition in paragraph (b) of that sub-paragraph is satisfied at different times in the period by reference to different schemes or different paragraphs of sub-paragraph (7) or both.

(7) This sub-paragraph applies to a person if—

(a) he is a participant in a nuclear pension scheme;

(b) he is eligible to become such a participant; or

(c) he would be eligible to become such a participant had he attained an age, or fulfilled a condition, specified in the pension scheme.

(8) For the purposes of sub-paragraph (5) the employment condition is satisfied by a person at the relevant time if, and only if, his employment throughout the relevant period has been for NDA purposes (within the meaning of sub-paragraph (4)).

(9) For the purposes of sub-paragraph (8) the relevant period in the case of a person to whom sub-paragraph (2) applies is whichever is the shorter of—

(a) the period of six months ending with the relevant time; and

(b) the period up to the relevant time since the last occasion prior to the present case on which sub-paragraph (2) applied to him.

(10) For the purpose of a person being entitled to pension protection in relation to a nuclear transfer scheme or any transfer arrangements on the first occasion on which sub-paragraph (2) applies to him, this paragraph shall have effect with the omission of sub-paragraph (5)(c).

(11) A person is not entitled to pension protection in relation to a nuclear transfer scheme or any transfer arrangements—

(a) at a time before the designated date unless he is a public sector employee immediately before that time; or

(b) at a time on or after the designated date unless he was a public sector employee at the time immediately before that date.

(12) In this paragraph “the relevant time”, in relation to a person to whom sub-paragraph (2) applies, means—

(a) the time when, in accordance with the scheme or arrangements, the transfer of his employment to the UKAEA, the NDA, a publicly controlled company or a private sector employer takes effect; or

(b) in relation to a person whose employment is not so transferred, the time when, in accordance with the scheme or arrangements, the transfer of securities of, or voting rights in, the company by which he is employed or the company of which it is a subsidiary takes effect.

Commencement Information

I1 Sch. 8 para. 9 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1

[F1 Persons entitled to reformed protection under paragraphs 10 and 11 U.K.

Textual Amendments

F1 Sch. 8 para. 9A and cross-heading inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(2)

9A. (1) For the purposes of this Part of the Schedule, a person is entitled to reformed protection in relation to a nuclear transfer scheme or any transfer arrangements if the person is entitled to pension protection in relation to the scheme or arrangements, and— U.K.

(a) either—

(i) paragraph 9(7) applies to the person by reference to a relevant Section of the CNPP, or

(ii) that is not the case but the person has been a participant in a relevant Section of the CNPP,

and the benefits which the person is accruing or would accrue or has accrued under that Section are, or include, reformed benefits, or

(b) either—

(i) paragraph 9(7) applies to the person by reference to the SLC Section of the ME Group of the ESPS, or

(ii) that is not the case but the person has been a participant in that Section,

and the benefits which the person is accruing or would accrue or has accrued under that Section are, or include, reformed benefits.

(2) In this paragraph—

(a) “the CNPP” means the Combined Nuclear Pension Plan constituted by the deed made on 28 March 2012 by the NDA and the deeds supplemental to that deed;

(b) “the ESPS” means the Electricity Supply Pension Scheme established by a resolution of the Electricity Council passed on 20 January 1983, as amended from time to time;

(c) “the ME Group” means the Magnox Electric Group of the ESPS, being one of the groups into which the ESPS is divided under the provisions of the ESPS;

(d) “reformed benefits” means defined benefits under a structure that, as a result of amendments made in pursuance of regulations under section 311 of the Energy Act 2023, is a career average revalued earnings structure;

(e) “relevant Section of the CNPP” means any of the following Sections into which the CNPP is divided (under clause 7 of the deed made on 28 March 2012 as it stood on 1 May 2022)—

(i) Closed;

(ii) DSRL;

(iii) GPS DRS;

(iv) GPS SLC;

(v) LLWR;

(vi) Magnox;

(vii) Nirex;

(viii) Sellafield;

(f) “the SLC Section of the ME Group of the ESPS” means the SLC Section of the ME Group, being one of the Sections into which the ME Group is divided under the provisions of the ESPS.

(3) Where—

(a) at any time after 1 May 2022, any of the Sections named in sub-paragraph (2)(e)(i) to (viii) is re-named, or has merged with another of those Sections (including by a transfer of the Section and another of those Sections to a new Section), a reference in sub-paragraph (2)(e) to that Section is to be read as, or as including, a reference to the re-named or merged Section;

(b) at any time after the day on which the Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 come into force, the SLC Section of the ME Group of the ESPS is re-named, or has merged with another Section (including by transfer of that Section to a new Section), then a reference to that Section is to be read as, or as including, a reference to the re-named or merged Section.]

Protection on transfer in accordance with a nuclear transfer scheme U.K.

10 (1) Before the coming into force of a nuclear transfer scheme in relation to which persons are entitled to pension protection the Secretary of State must consult— U.K.

(a) the appropriate pension scheme authority;

(b) the Treasury; and

(c) such persons as appear to him to represent the persons who will be entitled to pension protection in relation to the scheme.

(2) Before the coming into force of such a transfer scheme, the Secretary of State must satisfy himself that every person entitled to pension protection in relation to the scheme will be entitled, by virtue of the employment that he will hold after the relevant time—

(a) to exercise an option of becoming a participant in an appropriate pension scheme; or

(b) in the case of a person to whom paragraph 9(7)(c) will apply immediately before the relevant time, to exercise such an option on or before attaining the age or fulfilling the condition in question.

(3) The Secretary of State’s duty under sub-paragraph (2) is owed to every person who is entitled to pension protection in relation to the transfer scheme.

(4) In the case of a person to whom paragraph 9(5)(d)(ii) applies, the references in sub-paragraph (2) to a person being entitled to exercise an option are to be construed as references to a person being entitled to exercise an option if his employer exercises the entitlement mentioned in paragraph 9(5)(d)(ii).

(5) For the purposes of sub-paragraph (2), a pension scheme is an appropriate pension scheme in relation to a person if the Secretary of State is satisfied that—

(a) taking into account the other benefits (if any) that are conferred on or made available to that person as a result of the employment that he will hold after the relevant time, and

(b) taking the benefits that are available under the provisions of that pension scheme as a whole,

the benefits that are available under those provisions are no less favourable than the benefits available under the provisions (taken as a whole) of the nuclear pension scheme in respect of which he is entitled to protection under this Part of this Schedule.

(6) In sub-paragraph (5) the reference to the scheme in respect of which a person is entitled to protection under this Part of this Schedule is a reference to—

[F2 (za) in the case of a person entitled to reformed protection in relation to the nuclear transfer scheme who falls within paragraph 9A(1)(a), the Section mentioned in paragraph 9A(1)(a);

(zb) in the case of a person entitled to reformed protection in relation to the nuclear transfer scheme who falls within paragraph 9A(1)(b), the Section mentioned in paragraph 9A(1)(b);]

(a) in the case of a person [F3 who is not entitled to reformed protection in relation to the nuclear transfer scheme and] who has not previously been owed a duty under either sub-paragraph (2) or paragraph 11(3), the scheme by reference to which paragraph 9(7) will apply to him immediately before the relevant time; and

(b) in other cases, the scheme by reference to which paragraph 9(7) applied to him immediately before the time that was the relevant time in relation to him on the first occasion on which he was owed such a duty;

and the reference, in relation to such a person, to the provisions of that scheme is a reference to its provisions as in force immediately before the time specified in sub-paragraph (7).

(7) That time is—

[F4 (za) in a case falling within sub-paragraph (6)(za), the relevant time in relation to the person on the first occasion on which the person was owed a duty under either sub-paragraph (2) or paragraph 11(3) after the making of amendments to the Section mentioned in paragraph 9A(1)(a) in pursuance of regulations under section 311 of the Energy Act 2023;

(zb) in a case falling within sub-paragraph (6)(zb), the relevant time in relation to the person on the first occasion on which the person was owed a duty under either sub-paragraph (2) or paragraph 11(3) after the making of amendments to the Section mentioned in paragraph 9A(1)(b) in pursuance of regulations under section 311 of the Energy Act 2023;]

(a) in a case falling within sub-paragraph (6)(a), the relevant time; or

(b) in a case falling within sub-paragraph (6)(b), the relevant time in relation to the person on the first occasion on which he was owed a duty under either sub-paragraph (2) or paragraph 11(3).

(8) Where a person—

(a) is a participant in a non-nuclear pension scheme by virtue of the exercise of an option in a case in which the Secretary of State discharged his duty to that person under sub-paragraph (2) by reference to that option, or

(b) is or will become entitled to exercise an option to become a participant in such a pension scheme in a case in which the Secretary of State discharged his duty to that person under sub-paragraph (2) by reference to that entitlement,

this Part of this Schedule shall have effect in relation to that person as if that scheme were a nuclear pension scheme.

(9) Sub-paragraph (8) does not apply in relation to a person to whom paragraph 9(5)(d)(ii) applied when the Secretary of State discharged his duty to that person under sub-paragraph (2) unless the person’s employer exercises the entitlement mentioned in paragraph 9(5)(d)(ii).

(10) In this paragraph “relevant time” has the same meaning as in paragraph 9.

Textual Amendments

F2 Sch. 8 para. 10(6)(za)(zb) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(3)(a)(i)

F3 Words in Sch. 8 para. 10(6)(a) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(3)(a)(ii)

F4 Sch. 8 para. 10(7)(za)(zb) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(3)(b)

Commencement Information

I2 Sch. 8 para. 10 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1

Protection on a transfer in accordance with transfer arrangements U.K.

11 (1) It shall be the duty of the NDA to secure that provision is made for ensuring that consultation with the persons specified in sub-paragraph (2) takes place before any transfer arrangements in relation to which persons are entitled to pension protection take effect. U.K.

(2) Those persons are—

(a) the NDA itself;

(b) the Secretary of State;

(c) the Treasury;

(d) persons appearing to the NDA to represent persons who will be entitled to pension protection in relation to the arrangements.

(3) Before such transfer arrangements take effect, the NDA must satisfy itself that every person entitled to pension protection in relation to the arrangements will be entitled, by virtue of the employment that he will hold after the relevant time—

(a) to exercise an option of becoming a participant in an appropriate pension scheme; or

(b) in the case of a person to whom paragraph 9(7)(c) will apply immediately before the relevant time, to exercise such an option on or before attaining the age or fulfilling the condition in question.

(4) The NDA’s duty under sub-paragraph (3) is owed to every person who is entitled to pension protection in relation to the transfer arrangements.

(5) In the case of a person to whom paragraph 9(5)(d)(ii) applies, the references in sub-paragraph (3) to a person being entitled to exercise an option are to be construed as references to a person being entitled to exercise an option if his employer exercises the entitlement mentioned in paragraph 9(5)(d)(ii).

(6) For the purposes of sub-paragraph (3), a pension scheme is an appropriate pension scheme in relation to a person if the NDA is satisfied that—

(a) taking into account the other benefits (if any) that are conferred on or made available to him as a result of the employment that he will hold after the relevant time, and

(b) taking the benefits that are available under the provisions of that pension scheme as a whole,

the benefits that are available under those provisions are no less favourable than the benefits available under the provisions (taken as a whole) of the nuclear pension scheme in respect of which he is entitled to protection under this Part of this Schedule.

(7) In sub-paragraph (6) the reference to the scheme in respect of which a person is entitled to protection under this Part of this Schedule is a reference to—

[F5 (za) in the case of a person entitled to reformed protection in relation to the transfer arrangements who falls within paragraph 9A(1)(a), the Section mentioned in paragraph 9A(1)(a);

(zb) in the case of a person entitled to reformed protection in relation to the transfer arrangements who falls within paragraph 9A(1)(b), the Section mentioned in paragraph 9A(1)(b);]

(a) in the case of a person [F6 who is not entitled to reformed protection in relation to the transfer arrangements and] who has not previously been owed a duty under either sub-paragraph (3) or paragraph 10(2), the scheme by reference to which paragraph 9(7) will apply to him immediately before the relevant time; and

(b) in other cases, the scheme by reference to which paragraph 9(7) applied to him immediately before the time that was the relevant time in relation to him on the first occasion on which he was owed such a duty;

and the reference, in relation to such a person, to the provisions of that scheme is a reference to its provisions as in force immediately before the time specified in sub-paragraph (8).

(8) That time is—

[F7 (za) in a case falling within sub-paragraph (7)(za), the relevant time in relation to the person on the first occasion on which the person was owed a duty under either sub-paragraph (3) or paragraph 10(2) after the making of amendments to the Section mentioned in paragraph 9A(1)(a) in pursuance of regulations under section 311 of the Energy Act 2023;

(zb) in a case falling within sub-paragraph (7)(zb), the relevant time in relation to the person on the first occasion on which the person was owed a duty under either sub-paragraph (3) or paragraph 10(2) after the making of amendments to the Section mentioned in paragraph 9A(1)(b) in pursuance of regulations under section 311 of the Energy Act 2023;]

(a) in a case falling within sub-paragraph (7)(a), the relevant time; or

(b) in a case falling within sub-paragraph (7)(b), the relevant time in relation to the person on the first occasion on which he was owed a duty under either sub-paragraph (3) or paragraph 10(2).

(9) Where a person—

(a) is a participant in a non-nuclear pension scheme by virtue of the exercise of an option in a case in which the NDA discharged its duty to that person under sub-paragraph (3) by reference to that option, or

(b) is or will become entitled to exercise an option to become a participant in such a pension scheme in a case in which the NDA discharged its duty to that person under sub-paragraph (3) by reference to that entitlement,

this Part of this Schedule shall have effect in relation to that person as if that scheme were a nuclear pension scheme.

(10) Sub-paragraph (9) does not apply in relation to a person to whom paragraph 9(5)(d)(ii) applied when the NDA discharged its duty to that person under sub-paragraph (3) unless the person’s employer exercises the entitlement mentioned in paragraph 9(5)(d)(ii).

(11) In this paragraph “relevant time” has the same meaning as in paragraph 9.

Textual Amendments

F5 Sch. 8 para. 11(7)(za)(zb) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(4)(a)(i)

F6 Words in Sch. 8 para. 11(7)(a) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(4)(a)(ii)

F7 Sch. 8 para. 11(8)(za)(zb) inserted (27.2.2024) by The Nuclear Decommissioning Authority (Pension Scheme Amendment) Regulations 2024 (S.I. 2024/219), regs. 1(1), 5(4)(b)

Commencement Information

I3 Sch. 8 para. 11 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1

Modification of NDA schemes U.K.

12 (1) The Secretary of State shall have power by direction to make such modifications of an NDA pension scheme as he considers appropriate for the purpose of securing— U.K.

(a) in relation to any proposed transfer, or

(b) in relation to transfers that he considers may occur,

that the scheme will be an appropriate pension scheme for the purposes of paragraph 10 or 11.

(2) The NDA shall also have power by direction to make such modifications of an NDA pension scheme as it considers appropriate for the purpose of securing—

(a) in relation to any proposed transfer, or

(b) in relation to transfers that it considers may occur,

that the scheme will be an appropriate pension scheme for the purposes of paragraph 10 or 11.

(3) Before making a modification under this paragraph the Secretary of State must consult—

(a) the NDA; and

(b) such persons as appear to him to represent the employees likely to be affected by the modification.

(4) Before making a modification under this paragraph the NDA must—

(a) consult such persons as appear to it to represent the employees likely to be affected by the modification; and

(b) obtain the consent of the Secretary of State to the modification.

Commencement Information

I4 Sch. 8 para. 12 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1