Pension duties of Element Six trustees under the spotlight

In November 2011, the trustees of the Element Six defined benefit scheme voted to accept a company proposal to wind it up. As consequence, they are facing allegations in the High Court that they failed in their duty to its members, specifically by failing to demand that the company ensure they contribute the funds needed to meet the benefits due to the workers who had been paying into it.

The winding up proposal included an offer from the multinational to pay €23 million into the fund for the benefit of those workers , although it is claimed that the actual cost of providing all the benefits that they had accrued would have been €240 million. The net effect was to leave those due pensions from the fund with vastly reduced benefits.

The narrative that the plaintiffs presented this week began in 2008, when the scheme was judged to be insolvent. In response to a formal contribution demand from the trustees, Element Six agreed a funding proposal that involved putting €10.75 million a year into the pension pot until 2020, beginning in 2009.

That remained on track until mid-2011, when the company commissioned a report from the scheme’s actuary, Willis. This found that poor investment returns, low interest rates, pensioners’ increasing longevity and pending regulatory changes threatened to render the 2009 proposal inadequate. It warned that the company’s yearly contributions would have to increase to up to €20 million.

In response, Element Six set up a sub-committee: trustee chairman Danny Coady (one of the defendants), company representative, Carmel Sexton, and Willis actuary, Joe Byrne. The plaintiffs claim that, with the aid of Willis, the multinational used this group to orchestrate the scheme's wind up.

The end of this process was the company’s proposal on which the trustees voted in November 2011. Their vote was evenly split, three-to-three, with workers’ representatives all opposing the wind up. Coady used his casting vote to ensure it went through.

Supported by evidence from expert witness, Vernon Holgate, the plaintiffs say that before this point, the trustees should have issued a formal contribution demand on the company, seeking the funds needed to ensure members received all benefits.

A conflict of interest prevented them from doing this, he alleges. The company warned the trustees that failing to tackle the pension liability could lead to the Shannon plant's closure. Thus they risked losing their jobs by attempting to force Element Six to meet its obligations to the fund.

According to Mr Holgate, this weakened their negotiating hand and prevented them from responding sufficiently in September 2011 when Element Six told them it was no longer prepared to pay the €10.75 million due.

Mr Holgate questioned Willis’s independence, with the defence challenging this.

The plaintiffs also argue that the fund would have fared better if Element Six had been liquidated. A report by Brian McEnery of Howarth Bastow Charleton, estimated that the scheme could have received €14-€18 million more than the €23 million on offer in those circumstances.

McEnery said €165 million in transfers from Element Six to its Luxembourg-based parent between 2009 and 2011 that could have been challenged in a liquidation.