The High Court has ruled that peripatetic workers are eligible to be auto-enrolled into a workplace pension scheme.
A judicial review sought by Fleet Maritime Services (FMSB) challenged the Pension Regulator’s (TPR) approach and guidance on peripatetic workers who travel from place to place, working in different locations. The organisation employs seafarers who work on ships owned by Carnival, which includes P&O Cruises and Cunard.
FMSB argued that many of its UK staff were not covered by the legislation because they worked in international waters and could not be said to ‘ordinarily’ work in the UK.
In July 2014, TPR issued FMSB with a compliance notice setting out the employer duties that it needed to comply with and those categories of workers the regulator considered were covered by the legislation and therefore were eligible to be auto-enrolled. The employer then requested a review and in September 2014, the regulator affirmed its decision to issue a compliance notice, prompting the employer to seek a judicial review of the decision.
TPR defended the challenge by arguing the location of a peripatetic worker’s base is the primary consideration when deciding if a worker falls within the definition of a jobholder under the Pensions Act 2008, not, as FMSB argued, the worker’s contract.
Mr Justice Leggatt ruled that TPR’s approach on peripatetic workers is correct, and that when establishing where such a worker 'ordinarily' works is the appropriate test to apply.
In relation to those workers who regularly begin and end their tours of duty in non-UK ports, the Court found in favour of the employer and revoked the compliance notice to enable the regulator to look again at these workers in light of the judgment.
Lesley Titcomb, chief executive at the Pensions Regulator, said: “This ruling comes at the end of a 12-month legal challenge and is an important legal victory for us on a number of levels.
“The judge confirmed that our approach in this particular case, and our guidance on how to assess peripatetic workers for the purpose of auto-enrolment, is correct. He also made clear that decisions of the regulator based on the assessment of particular facts are not ordinarily suitable for judicial review.
“In addition, this case also demonstrates that where appropriate we are prepared to defend against judicial reviews and our commitment to upholding the principles of auto-enrolment, is correct.”
