To: All FBU Members from General secretary Matt Wack
Date: 21 March 2017
Pensions: discrimination case appeal is registered
The FBU filed a Notice of Appeal on 17 March, seeking to set aside the decision made by the Employment Tribunal in the age discrimination claims made by more than 6,000 firefighters regarding the introduction of the 2015 Firefighters’ Pension Scheme.
The legal argument is that the transitional provisions, which permit older firefighters to remain in the older, and significantly better, 1992 Firefighters’ Pension Scheme, discriminate on the grounds of age and cannot be justified. Younger firefighters who were members of the 1992 Scheme had just as good a case as their older colleagues in retaining the former, better pension arrangements. The Government argues that it is legitimate to provide protection for members who are closer to retirement age. The FBU’s response is that protecting someone who is nearer to retirement from the pension changes is just another way of saying that the Government wants to protect older workers, and that is exactly what the age discrimination legislation prohibits. In fact, it can be argued that the older workers have less need of protection because they will suffer from the new pension arrangements for a shorter period of time and have already built up a larger pension under the old terms.
The Employment Tribunal did not agree. It concluded that the introduction of the new pension scheme was a social policy aim of the Government, affecting all public service employees, and European law allows member States a wide discretion when deciding their social policy objectives.
The grounds of appeal
The FBU’s Notice of Appeal lists 21 separate errors of law in the Employment Tribunal’s decision. In summary, the FBU says:
- These claims are about how the Government treats public employees, not wider social policy. The Government has no wider discretion to discriminate than any other employer.
- The Government admitted that the difference in treatment amounted to discrimination on the grounds of age. The question for the Employment Tribunal was whether that discrimination was a proportionate means of achieving a legitimate aim. The Tribunal did not analyse what the Government’s legitimate aim was, and in particular did not analyse what “protecting members closer to retirement” meant in terms of the impact of the younger and older age groups.
- The Employment Tribunal did not analyse the Government’s assertion that younger members would be able to adjust their lifestyles to accommodate the new pension arrangements. The only adjustments they can make are to adapt to being poorer and working for longer.
- Nor did the Employment Tribunal analyse how the new pension scheme would affect older and younger members, when it is clear that older members who would be in a new pension scheme for less time would be less affected than younger members who will be in it for longer.
- Even if there was some sort of legitimate aim, the Employment Tribunal should have examined whether the transitional arrangements were an appropriate and reasonably necessary means of achieving it. The Employment Tribunal was wrong to say that making a “social policy choice” absolves the Government of the need to explain why the means used to achieve its perceived aim were appropriate. The burden of proof is on the Government to do so.
- The Employment Tribunal decided that a cut-off point has to be set somewhere when introducing a new pension scheme. That is not a justification – what is in question is whether any sort of transition from one scheme to another, which the Government admitted was discriminatory, can be justified.
- The FBU also argued that the transitional arrangements discriminate indirectly on the grounds of sex and race. The sex and race profile of the fire and rescue service has changed in recent times which is, of course, to be welcomed. But it means that the younger disadvantaged group are also more likely to be women and/or from an ethnic minority background. The Government accepted that. The Employment Tribunal decided that the reason for treating one group less favourably than the other was down to age, but it did not answer the question whether reasons which are age-discriminatory can ever justify treatment which is also sex- and/or race-discriminatory.
- The Employment Tribunal decided that the Government did not have to justify its conduct because the pool of female and BME members is small. That is not what the law says.
- The Employment Tribunal said that if the transitional arrangements were justifiable for age discrimination purposes it follows that they are justifiable for sex and race discrimination purposes too. The Employment Tribunal did not actually analyse what the Government’s justification case was. If it had, it would have seen that no real justification argument was put forward at all.
- The Employment Tribunal ignored some inconvenient facts – the Government’s own advisers told it in 2011 that its transitional arrangements plans were potentially discriminatory and would concentrate benefits on those who already had the best pension provision.
A nearly identical claim was made by 210 judges. The judges won, and the Government has filed an appeal.
Our appeal now has to go through a process called the “sift”, where the Employment Appeal Tribunal will decide if there are reasonable grounds for appealing. Our advisers are confident that there are.
It is likely that the Employment Appeal Tribunal will then deal with our appeal at the same time as the judges’ case. We can expect a hearing towards the end of the year or early next year, and a judgment from the Employment Appeal Tribunal a month or two after that. If we win the Government may well appeal again. Inevitably, the legal process takes a long time and we need to prepare for that. We have been through other cases which also took a considerable time but which ultimately proved successful for FBU members but we will need to be prepared for the slow process.
Further reports will be issued as information becomes available.