Warning: Keep your GDPR house in order during crisis

COVID-19 data-protection issues could become a ‘GDPR epidemic’ for which trustees and employees will be paying for years to come.

MH&C pensions partner Stephen Gillick has warned that data protection issues and GDPR are paramount when everyone is working remotely and using digital formats that have not been designed for pension trustee communications.

Mr Gillick was speaking at a webinar titled ‘Pensions and COVID-19’ on Tuesday 31 March.

“I’ve heard of pension trustees in the last week ‘WhatApping’ sensitive member documentation to the trustees’ group,” Gillick told the webinar.

“I can’t over-emphasise this. It’s very important to look at the data you are sharing and look at the medium you are using to share that data. Is it safe? Is it secure?

“Is it actually designed for the communication of pension status, because a lot of it will be sensitive?” he queried.

Fines 'for years to come'

“We don’t want to make COVID-19 an epidemic … that trustees and employers are cleaning up and paying for, in terms of fines, for years to come,” he warned.

He also said that current creative solutions to trustee meetings should observe the usual formalities.

Trust documentation should be carefully checked to see whether it is permissible to have trustee meetings by electronic means, he advised, as well as other requirements, such as quorum numbers.

Statutory time limits

Pensions Authority guidance appears to state that, while there will be some flexibility, trustees need to be aware of statutory time limits, which will be ticking along.

Remittances must be made within time limits -- with no leeway at the moment. Trustee annual reports and other member communications must also be produced in line with statutory time limits, he warned.

Great volatility

Trustees should also consider whether they have enough cash to deal with ongoing requirements, he said.

“DB [defined benefit] transfers are seeing great volatility in terms of the payments to be made,” said Gillick, though he expects there may be a moratorium on members being allowed to ask a trustee to evaluate the fund-worth for transferring out of a pension scheme.

Another issue is the business continuity plan, whether for the trustee group itself or the administrators, given that the world is a very different place to what it was six weeks ago. ­

Continuity plan

This continuity plan needs to have content to deal with a global pandemic, and the same applies for service providers, he said.

Every plan needs a back-up plan, which should also be kept up to date, Gillick said.

“Identify who is responsible for critical activities during this period,” he advised,  and make sure contact details are easily accessible.

“Unfortunately, pensions fall down the pecking order during a period of crisis, especially where the very existence of the employer may be questioned, so contact between the trustee group and the sponsoring employer needs to be maintained throughout the crisis -- and the same applies for key service providers,”  Gillick said.

Zoom meetings

Jerry Moriarty said: “It’s probably very unlikely that any set of pension scheme rules, unless they are very recent, will actually specifically allow for meetings by Zoom or other technology.”

However, unless it is specifically prohibited, there is no reason Zoom meetings can’t go ahead, he proposed.

Gillick said that trustees should be cognisant of how their meetings were managed from a legal point of view.

Document production

Paper documentation for benefit statements might not be logistically possible at the moment because of access to data or physical printing processes.

No one is going to argue with online issuance, he feels, and trustees should take a common-sense approach, since authorities may give leeway on the prescriptive time period for document production.

In terms of what employers can do on contributions as they grapple with the effects of the pandemic and try to secure cash, with workers laid off or furloughed, the key issue, he said, was the pension-governing documentation and employment contracts.

Also, to remain Revenue-approved, all occupational pension schemes needed a “meaningful contribution”, he pointed out.