CA Summit 2008: Poorly performing DC funds are unlikely to attract legal action from scheme members, experts say

Concerns that poorly performing DC funds will result in scheme members taking legal action against employers, providers or advisers are misguided, according to experts at the Corporate Adviser summit.

But the potential for action in the future was not ruled out where DC replacements were presented as offering near equivalent benefits but underperform their final salary counterparts significantly.

Robin Ellison, head of strategic development at Pinsent Masons, pointed to the failure of several legal challenges in the US against company management for not warning employees that the firm was going bankrupt, which has been significant for DC plans where staff have held large amounts of shares in the sponsoring company within their 401k plan.

He said: “The judges in the US have unanimously said ‘tough’ and clearly do not want to open the can of worms of allowing investors to sue their employers for the bad management of the company. I believe it would be even more difficult to bring a successful action in the UK.”

Keith Barton, chairman of the Association of Consulting Actuaries, added: “As long as the company has operated within certain parameters there is no grounds for regulatory action.”

But Barton did say that in future there could be pressure from retiring employees who have been switched out of final salary plans if their DC plans do not deliver as hoped.

“Employees who were taken out of DB into DC plans and were led to believe these were offering OK benefits and then find out that the pensions are not as big as they had hoped for are going to be upset, especially ifthere is a market crash and there was no good default fund on offer to them.

“There is a moral risk there where they get to the stage where naked pensioners are camping outside head office saying they have got no pension. This could be a field day for the lawyers.

“They will be saying ‘we were poorly advised and you did not set up a decent DC plan for us to move into. What are you going to do about it?'”

A poll of delegates found that 58 per cent are generally satisfied that the default funds currently available on the market meet their needs. A significant 29 per cent were generally dissatisfied with the defaults offered by life insurers, and 13 per cent were very dissatisfied.