Essential Corporate News – week ending October 4, 2019

Investment Association: Guidance on executive pensions in 2020 AGM season published

On September 27, 2019 the Investment Association (IA) published new guidelines (Guidelines) ahead of the 2020 AGM season with regard to pension contributions for executive directors. The Guidelines follow changes to the UK Corporate Governance Code and the IA’s Principles of Remuneration 2018 to align executive pension contributions with the workforce as a point of fairness, in order to foster good employee relations. They follow earlier guidelines published by the IA in February 2019.

Under the Guidelines, companies must set a credible plan to pay all executive directors the same level of pension contributions as the majority of their workforce by the end of 2022 or risk further shareholder dissent. In addition, for companies with year-ends starting on or after December 31, 2019, the IA will use its Institutional Voting Information Service (IVIS) from the start of the 2020 AGM season to

• ‘Amber top’ any company with an existing director who has a pension contribution 25 per cent of salary or more, as long as they have set out a credible plan to reduce that pension to the level of the majority of the workforce by the end of 2022.
• ‘Red top’ any company with an existing director who has a pension contribution 25 per cent of salary or more, and has not set out a credible plan to reduce that contribution to the level of the majority of the workforce by the end of 2022.
• ‘Red top’ any company who appoints a new executive director or a director changes role with a pension contribution out of line with the majority of the workforce, or seeks approval for a new remuneration policy that does not explicitly state that any new director will have their pension contribution set in line with the majority of the workforce.

In addition, IA members request that companies disclose in their remuneration report the pension contribution rate that they consider to be given to the majority of the workforce and explain how this rate has been derived.

Companies are also expected to confirm, in respect of defined benefit schemes, that future accrual is still open to other employees on the same terms as the executive directors, or their remuneration report will be amber topped. Where companies pay a cash supplement in lieu of further accrual above an earnings limit, companies should confirm that such cash supplements are also paid to other employees on an equivalent basis, otherwise the remuneration report will be amber topped.

The IA will be publishing its updated Principles of Remuneration in October 2019.

(Investment Association: Guidance executive pensions in 2020 AGM season published, 27.09.19)

(IVIS: Investment Association Position On Executive Director Pension Provision – September 2019, 27.09.19)

FCA Updates to the draft directions issued under the Temporary Transitional Power

On September 26, 2019 the Financial Conduct Authority (FCA) published a revised version of the Main FCA Transitional draft Directions (draft Directions) under its Temporary Transitional Power (TTP). Alongside the draft Directions, the FCA published an explanatory note and updated versions of the related annexes, which address, among other things, the FCA Handbook and the prospectus regime. The draft Directions apply in the event of a no-deal Brexit, and update those published on March 28, 2019.

The purpose of the draft Directions is to give effect to the use of the FCA’s TTP should the UK leave the EU with no implementation period. The TTP gives the FCA flexibility in applying post-Brexit requirements, allowing firms to transition to the new UK regulatory framework. These draft Directions are being published at this stage to give firms time to consider the relevant changes that may apply.

The main updates in the revised draft Directions relate to the following areas

• Extending the proposed duration of the directions issued under the TTP from June 30, 2020 to December 31, 2020 (Standstill).
• Updating the provisions relating to prudential requirements in the directions to reflect new HM Treasury legislation and FCA exit instruments published since March 29, 2019.
• Revoking certain directions in relation to payment services provided by EEA credit institutions in the financial services contracts regime, as these are no longer required due to legislative amendments made by the Government.
• Applying an additional standstill direction to allow EEA Central Banks and the European Central Bank to continue to rely on their status as exempt persons until December, 31 2020.

The Standstill means that firms and other regulated persons will generally be able to continue to comply with regulatory obligations, as they had effect before exit day until 31 December 2020, although in certain cases the FCA expects such persons to undertake reasonable steps to comply with changes by exit day. The Standstill does not apply to any amendments made by

• The Prospectus (Amendment etc.) (EU Exit) Regulations 2019 or the Prospectus RTS Regulation (EU) 2019/979 amended by the Technical Standards (Prospectus Regulation) (EU Exit) Instrument 2019 because these regulations provide for a transitional regime in respect of prospectuses that have been approved by a competent authority of an EEA state other than the UK and passported into the UK before exit day.
• The Exiting the European Union: Handbooks (Amendments) Instrument 2019 to the Listing Rules (LR) Sourcebook, the Exiting the European Union: Handbook (Amendments) Instrument 2019 to the Prospectus Regulation Rules (PRR) Sourcebook or the Exiting the European Union: Handbooks (Amendments) Instrument 2019 to the Disclosure Guidance and Transparency Rules (DTR) Sourcebook because these instruments make the necessary transitional provisions in relation to such amendments.
• The Market Abuse (Amendment) (EU Exit) Regulations 2018.

The FCA does not expect to make further changes to the draft Directions.

(FCA: draft Main FCA Transitional Directions, 26.09.19)

(FCA: draft Main FCA Transitional Directions Annex A, 26.09.19)

(FCA: draft Main FCA Transitional Directions Annex B, 26.09.19)

(FCA: Updated Main FCA Transitional Directions draft explanatory note, 26.09.19)

(FCA: Updates to the directions under the Temporary Transitional Power press release, 26.09.19)

FRC: Going Concern audit standard strengthened

On September 30, 2019 the Financial Reporting Council (FRC) issued a revised International Standard on Auditing (ISA) (UK) 570 - Going Concern (Going Concern Standard). The revised Going Concern Standard follows a consultation by the FRC, which was launched on March 4, 2019, in the light of recent FRC enforcement cases and corporate failures in which the auditor’s report failed to highlight concerns about the prospects of entities. Alongside the revised Going Concern Standard, the FRC published a feedback statement setting out the results of the consultation.

The revised Going Concern Standard follows concerns about the quality of audit in the UK and increases the work auditors are required to do when assessing whether an entity is a going concern. It means UK auditors will follow significantly stronger requirements than those required by current international standards.

The revised Going Concern Standard requires

• greater work on the part of the auditor to more robustly challenge management’s assessment of going concern, thoroughly test the adequacy of the supporting evidence, evaluate the risk of management bias, and make greater use of the viability statement
• improved transparency with a new reporting requirement for the auditor of public interest entities, listed and large private companies to provide a clear, positive conclusion on whether management’s assessment is appropriate, and to set out the work they have done in this respect.
• a stand back requirement to consider all of the evidence obtained, whether corroborative or contradictory, when the auditor draws their conclusions on going concern.

(FRC: Going Concern audit standard strengthened press release, 30.09.19)

(FRC: Feedback statement – ISA (UK) 570 – Going Concern, 30.09.19)

(FRC: ISA (UK) 570 – Going Concern (Revised September 2019), 30.09.19)

Technical Expert Group on Sustainable Finance: Final report on EU climate benchmarks published

On September 30, 2019 the Technical Expert Group on Sustainable Finance (TEG), issued its final report on EU climate benchmarks (Report), alongside a summary document. This Report follows the 2018 EU Action Plan on Sustainable Finance and the agreement by the European Parliament and Member States on a new generation of low-carbon benchmarks needed to help boost investment in sustainable projects and assets.

The Report sets out recommendations for

• A set of minimum technical requirements for the methodology of EU climate benchmarks that would help investors adopting climate-conscious investment strategies to make informed decisions as well as address the risks of greenwashing (the practice of financial products being marketed as 'green' or 'sustainable', while not actually meeting basic environmental standards).
• A set of environmental, social and governance (ESG) disclosure requirements for benchmark administrators, including disclosure on the alignment with the Paris agreement.

The Report will inform the preparation of delegated acts by the European Commission (Commission) to the low-carbon benchmarks and positive carbon impact benchmarks regulation, agreed in February 2019. The Commission's benchmarks regulation is expected to be published by the end of the year. The delegated acts will be subject to a formal consultation and are expected to be adopted by mid-2020.

(TEG Final Report on Climate Benchmarks and Benchmarks ESG disclosures, 30.19.19)

(TEG Final Report on Climate Benchmarks and Benchmarks ESG disclosures - overview, 30.19.19)

Government Equalities Office: Men As Change Agents “Lead the Change” Board initiative launched

On September 25, 2019 the Government Equalities Office announced the first meeting of the Men As Change Agents “Lead the Change” Board (MACA Board). The MACA Board is a new government-backed board comprised of senior industry bosses who will work together with organisations nationwide in an initiative aimed at promoting diversity and inclusion in business and greater equality at the top of companies.

The MACA Board will support the Hampton-Alexander review to help reach the target 33 per cent of executive level FTSE 350 business leaders being women by the end of 2020 and will also work to increase the ethnic diversity in the workplace to ensure that each FTSE 100 board has at least one ethnic minority director by 2021 and each FTSE 250 board has at least one ethnic minority director by 2024, supporting the Parker review.

As part of this initiative, business leaders are encouraged to make pledges to tackle the issue of equality in the workplace, including to

• Take personal responsibility for promoting better diversity and inclusion in their business and aiming to achieve the relevant targets in the Hampton-Alexander and Parker reviews.
• Promote better diversity and inclusion by sponsoring one to three individuals from an under-represented group within their organisation who have the potential to secure an executive role within three years.
• Be an active and visible change agent by being part of the wider business conversation and achieving better diversity and inclusion within their organisation as a result.

(Government Equalities Office: Men As Change Agents “Lead the Change” Board initiative launched, 25.09.19)

ESMA: Final guidelines on risk factors under the Prospectus Regulation published

On October 1, 2019 the European Securities and Markets Authority (ESMA) published its final form guidelines (Guidelines) on risk factors under the new Prospectus Regulation.

The Guidelines remain mostly unchanged from the version published in March 2019, with only minor drafting amendments being made, and will apply from December 1, 2019.

(ESMA: Guidelines on risk factors under the Prospectus Regulation, 01.10.19)