Pensions Bill

Clause 43 will allow the regulator to request books and documentation from employers to demonstrate that they have complied with the new requirements. In addition, when the regulator is of the opinion that a person has failed to keep proper records, it will have the power to issue a civil penalty. Employers already keep records and documentation to illustrate that they are complying with legislative requirements. Therefore, very often the employer's own records will show one way or another whether it has complied with the requirements placed on it. The noble Baroness's amendment would mean that if a company wound up, the regulator would no longer be in a position to require the former employer to provide records to show that while trading it was complying with the employer duty. Similarly, former employees of the company that had been wound up would almost certainly be left in a position where they could not enforce their rights against their former employer, because there would be no legal obligation on the employer to produce the very records that would prove whether it had been compliant. It may also be possible for employers who have for some time been deliberately ignoring legal requirements and who fear the intervention of a regulator simply to wind up their companies and then reopen for business under a different name a short while later. This behaviour has been observed in relation to the national minimum wage requirements and it may well be seen again when the employer duty comes into force. On the specific question posed about the consistency of this with other legislation and whether it can be reconciled, there is some difficulty with it. Where an employer is wound up it effectively ceases to exist and may therefore not be covered by existing record-keeping requirements. It is effectively covered by the insolvency regulations, but these place a requirement on both liquidators and trustees to wait for one year before books and records can be destroyed. So I say to the noble Baroness that we need to think a little more about this and revert in due course. I do not believe that we have been fully able to cover and reconcile that inconsistency in the legislation. The point she raises is a good one and we need to take it away.