Fosters Fruit n Veg Limited v The Pensions Regulator

1. This reference concerns a Fixed Penalty Notice (“FPN”) which was issued by the Pensions Regulator (“The Regulator”) on 9 th April 2025 (Notice number: 104458949344).

2. The FPN was issued under section 40 of the Pensions Act 2008 (“ the Act ”) and notified the Appellant that they were required to pay a financial penalty of £400 for failing to comply with the requirements of a Compliance Notice, which had been issued under section 35 of the Act on 12 th February 2025. The date by which the Appellant was required to comply with the Compliance Notice was 25 th March 2025.

3. The Regulator carried out a review of the decision to impose the FPN and informed the Appellant on 24 th April 2025 that the FPN had been upheld. The Law

4. The Pensions Act 2008 imposed a number of legal obligations on employers in relation to the automatic enrolment of certain ‘jobholders’ into occupational or workplace personal pension schemes. The Pensions Regulator has statutory responsibility for securing compliance with these obligations and may exercise certain enforcement powers.

5. Each employer is assigned a ‘duties start date or staging date’ from which the timetable for performance of their obligations is set. The Employer’s Duties (Registration and Compliance) Regulations 2010 specify that an employer must provide certain specified information to the Regulator within five months of their staging date or duties start date. This is known as a ‘Declaration of Compliance’. An employer is required to make a re-declaration of compliance every three years. Where this is not provided, the Regulator can issue a Compliance Notice and then a Fixed Penalty Notice for failure to comply with the Compliance Notice. The prescribed Fixed Penalty is £400.

6. Under section 44 of the 2008 Act , a person who has been issued with a Fixed Penalty Notice may make a reference to the Tribunal provided that a review has been carried out or an application for review has been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, considering the evidence before it.

7. The Tribunal may confirm, vary or revoke a penalty notice and when it reaches a decision, must remit the matter to the Regulator with such directions (if any) required to give effect to its decision. Evidence

8. The parties had agreed to the matter being determined on the papers. I am satisfied, pursuant to Rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, that I can properly determine the issues without a hearing.

9. I have been provided with a 178-page bundle which I have read and considered. The Facts

10. The Appellant’s duties start date was 19 th August 2024, and the deadline for completion and submission of its Declaration of Compliance was therefore five months from that duties start date. In other words, the Appellant was required to complete and submit the Declaration of Compliance by 20 th January 2025.

11. The Regulator issued a Compliance Notice on 12 th February 2025, informing the Appellant that its Declaration of Compliance was to be completed and submitted by an extended deadline of 25 th March 2025. No response was forthcoming however, resulting in a FPN being issued on 9 th April 2025 for £400. This sum is prescribed by the Employers’ Duties (Registration and Compliance) Regulations 2019.

12. The Appellant requested a review of the £400 FPN on 11 th April 2025, and on 24 th April 2025 the Regulator provides its response, confirming the penalty. Following completion of the Appellant’s Declaration of Compliance on the same date, which by this time was nearly a month after the extended deadline of 25 th March 2025, the Appellant submitted a second review request. The Regulator responded to this on 13 th May 2025, confirming the FPN.

13. The Appellant submitted this reference to the Tribunal on 13 th June 2025. Submissions

14. In the Notice of Appeal, the Appellant set out a number of grounds for the reference, which are summarised as follows: (i) That whilst the Declaration of Compliance was submitted marginally after the specified deadline, it was submitted and there was no intention to avoid completing the declaration or to fail to comply. (ii) That as a small, independent business, without an in-house HR or compliance team, it is unrealistic to expect such a business to achieve perfect administration when burdened with legal obligations usually handled by professionals. (iii) That there was no breach in duty due to a wilful disregard of the requirement, and the breach was due to operational and resource constraints. (iv) That the Regulator did not engage in any meaningful communication prior to imposing the Fixed Penalty Notice. No dialogue was initiated beyond templated correspondence, and a simple call of prompt could have resolved the issue without escalation. (v) The penalty was imposed without a fair or flexible approach.

15. In response, the Regulator makes a number of submissions, which are summarised below: (i) That the grounds advanced by the Appellant do not amount to a reasonable excuse for the failure to complete and submit its Declaration of Compliance as required. (ii) That the Compliance Notice and the FPN were both sent to the Appellant’s registered address of 33 The Tower Pub, High Street, Redhill RH1 1RD. (iii) As a responsible employer it is for the Appellant to be aware of their legal duties and to ensure full and on time compliance with these duties. The relative size of an employer’s workforce does not detract from the statutory duty to comply with its duties. (iv) There is no record of the Appellant contacting the Regulator or attempting to complete the Declaration of Compliance at any time before 24 th April 2025, and having failed to submit it, it was fair and reasonable for the Regulator to issue a Compliance Notice and then a FPN when the extended dealing was not adhered to. (v) Whilst the Regulator is not required to put employers on notice of their automatic enrolment duties, the Regulator sent the Appellant four letters prior to the issue of the Compliance Notice, detailing the requirement to complete the Declaration of Compliance by 20 th January 2025. The letters stated that the Appellant ought to “Act now” and that “urgent action” was required in order for the Appellant to avoid a fine. (vi) In addition to the four letters, the Regulator attempted to telephone the Appellant to chase the issue of the Compliance Notice on 26 th February 2025 (at Annex M, p. 146 of the bundle). There was, however, no answer on the telephone and no facility to leave a voicemail message. (vii) The Declaration of Compliance was completed after the extended deadline in the Compliance Notice and following the issue of the FPN. Late or eventual compliance does not excuse the failure to comply with all the directions in the Compliance Notice. Conclusions

16. The timely provision of information to the Regulator, so that it can ascertain whether an employer has complied with its duties under the Act is crucial to the effective operation of the automatic enrolment scheme. Unless the Regulator is provided with this information, it cannot effectively secure the compliance of employers with their duties. It is for this reason that the provision of a declaration of compliance within a specified timeframe is a mandatory requirement.

17. Whilst the Appellant eventually complied with the obligation to complete and submit its Declaration of Compliance, this was after the deadline had passed and was following an extended period of time, provided by the Regulator, in which the declaration could have been submitted. Eventual compliance came about after the FPN had been issued and received by the Appellant. Having considered all of the arguments advanced by the Appellant, I am satisfied that a reasonable excuse for its failure to abide by its statutory obligations has not been provided.

18. Failing to act upon a letter or Notice does not provide an excuse for failing to comply with the statutory obligations imposed by Parliament upon a company. Whilst a Regulator may send reminders to a company to adhere to its legal obligations, this does not serve to remove the duty of an employer to be aware of and adhere to the regulatory regime which they must abide by. That duty falls to the employer alone, and it is the employer’s responsibility to ensure compliance.

19. I am satisfied that the issuing of the FPN was the appropriate action to take in these particular circumstances. No consideration may be given to a reduction to the £400 penalty fee, as this sum is prescribed by the Employers’ Duties (Registration and Compliance) Regulations 2010.

20. The reference is dismissed and the matter is remitted to the Regulator. Signed: Date: Judge Armstrong-Holmes 17 th December 2025