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PensionsTuesday 22 July 2025

Employer discretions about surplus: Employer’s powers and discretions on scheme winding-up

David Pollard has written a paper on surplus in trust based occupational pension schemes dealing with the position on a scheme winding-up.

This followed a session at the annual conference of the Association of Pension Lawyers (APL) last year.

Surplus in occupational pension schemes is a big topic.  When analysing the legal issues arising on a use of surplus, many different legal issues can arise. The paper digs deeper into the issues of employer powers and discretions arising on the winding-up of a scheme.

The paper deals with:

  1. Introduction to surpluses
  2. On-going schemes
  3. Surplus refunds on a scheme winding-up
  4. Terms of the trust instrument
  5. Who has the discretion?
  6. Constraints on an employer
  7. Employer powers not fiduciary
  8. Fiduciary duties – overview
  9. Proper purposes
  10. Braganza duties/ mutual duty of trust and confidence
  11. Risk of a later challenge?

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