Commenting in response to TPR’s Consultation on its Approach to the Investigation and Prosecution of the New Criminal Offences, Alistair Russell-Smith, Head of Corporate DB, Hymans Robertson, says:

“The approach set out by TPR appears to be broadly consistent with the policy intent to increase the deterrent for reckless conduct in relation to DB schemes, rather than to fundamentally change corporate norms or accepted standards of corporate behaviour. It is likely to increase the need for corporates to have a clearer audit trail of their decision making and rationale - it will force the DB scheme higher up the corporate agenda.

“Our main concern is that TPR's new powers appear wide and on the face of it would capture routine corporate activity. Practical cases will take a while to develop so in the meantime expanding guidance from TPR to cover actions and considerations that it would expect from companies as part of its decision making to support a view that there is a reasonable excuse for the act would be helpful. One area where we think more clarity could be provided is the steps a company should take to conclude that they have a 'reasonable excuse', e.g. what is the order of events, how should decisions be made and documented.

“Finally, the fundamental new legal powers from Pensions Act 2021 remain potentially wide-ranging. Whilst the policy gives comfort on how TPR will respond in the short term, it does not remove the risk for corporates that the legal powers will be enforced far more heavily or in a more wide-ranging fashion in the future.”