Ask the panel

July 7, 2006

Worried about your employment, maternity, pension rights? Send your questions to The Times Higher advice panel.

I have been working part time for an old university for six years and have only just realised that I am eligible for the pension scheme. This has come as quite a shock. I have joined immediately, but feel angry that I was not informed about this earlier. I am at a loss to see how this could have happened. Is there anything I can do about this at this stage?

Our key pension panellists are surprised and concerned that you did not join the pension scheme and feel that you need to talk to your university's human resources department as soon as you can.

* Our panellist from the Universities and Colleges Employers' Association says: "I am surprised to hear that you have only just joined the Universities Superannuation Scheme (USS) after six years of employment.

This is most unusual. Although membership of the scheme is voluntary, if you are eligible, you will be deemed to have joined unless you indicate otherwise in writing before you start employment."

He goes on to clarify the situation: "In other words, institutions would normally enter new staff into the scheme automatically unless they opt out in writing. If you are sure that you did not opt out of the scheme, you should discuss the matter with your human resources department in the first instance to find out how this happened."

* Our panellist from the University and College Union develops this theme and says: "The question is vague as you are not clear about the type of post you are in and whether or not your employment has been continuous.

"Assuming you have been permanently employed in an academic, research or academic-related post, and the contractual hours were defined as a proportion of a full-time post (for example, 0.4 and so on), then, under rule 4.2 of the USS, you should have been given automatic access to the scheme, ie you should not have had to do anything to become a member."

She sets out the implications for those working in a different way.

"If, however, you were in hourly paid employment without the percentage of a full-time post being defined, then you are classed as an irregular employee, and under the rules of the USS since July 2001 you had to opt into the scheme.

"Of course, to be able to opt in, the employer has to provide the relevant offer."

She adds: "The first task is to check whether your contract of employment referred to pension rights: if not, then there was a breach of the statutory regulations. If the contract stated that you were not eligible to join USS, then this could be misrepresentation or negligence on the part of the employer. The limitation period for a claim under tort is six years from the act subject to complaint or three years from the time that you became aware of the negligence."

And she says: "In parallel, you should raise a grievance on the grounds that the employer has failed to implement rule 4.2 of the USS correctly by denying access to the scheme when you started your employment. You should check your staff handbook to find out about the grievance procedure.

"It is important if taking a grievance that you are clear what you want to get out of it. In this case, the resolution of the grievance would be for the employer to ask USS Ltd to backdate membership to the commencement of your employment. You should, at most, be required to pay only the relevant contributions, namely 6.35 per cent of the salary earned over the period, and be given time to pay. As there is now no limit to tax-free pension contributions in any year, the back contributions would attract tax relief.

"You should immediately contact your trade union or a solicitor for further advice. This is a complex area and your case raises concerns that you will need support in addressing."

This advice panel includes the University and College Union, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party. Send questions to advicepanel@thes.co.uk

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