What is prohibited recruitment conduct under the pensions auto-enrolment provisions?

Section 50 of the Pensions Act 2008 provides for "prohibited recruitment conduct" in relation to the pensions auto-enrolment provisions. The aim of s.50 is to prevent employers from avoiding their auto-enrolment duties by screening candidates to select only those who are likely to opt out of the pension scheme.

An employer (or a party acting on its behalf) must not make any statement, or ask any question, that indicates that an application for employment will be determined by reference to whether or not the applicant might opt out of auto-enrolment. The prohibition on such conduct applies in the course of:

  • inviting applications for employment;
  • requesting information from an applicant, referee or other person in connection with an application for employment;
  • providing information about employment; and
  • proposing terms or conditions of employment.

For example, an express statement (whether written or verbal) by the employer that the successful applicant would be expected to opt out of auto-enrolment would amount to prohibited conduct. However, the indication that employment will be offered only to a candidate who is likely to opt out could be implied rather than express. For example, a question during the interview about whether or not the candidate would opt out, without referring to any potential consequences of the decision, is likely to amount to prohibited conduct.

While employers should be cautious when raising the issue of membership of the pension scheme during recruitment, guidance from the Pensions Regulator on Safeguarding individuals states that the prohibited recruitment conduct provisions do not prohibit employers from "communicating to applicants or prospective employees the positive benefits of the qualifying scheme that they provide".