To: All Members
Date: 2 February 2017
Transition to the 2015 Firefighters’ Pension Scheme: Discrimination Claims
The hearing of the Employment Tribunal claims which the FBU has undertaken concluded on the 18th January. The Employment Judge is considering the questions raised, and we are hopeful that her decision will be published within the next few weeks.
The Tribunal decision in the parallel judges’ Employment Tribunal claim was published, by a happy coincidence, on the 16th January. As previously reported, the judges won their case. The reasons why they won translate directly to our cases, and we have additional points that do not apply to judges but which in our view makes firefighters’ claims stronger. Our legal team is confident that we have presented a strong case, but of course the outcome of legal proceedings can never be guaranteed.
This circular is intended to update members on the progress of the legal campaign and the likely next stages.
What are the issues?
When the 2015 Firefighters’ Pension Scheme was imposed, transitional arrangements were made whereby some older firefighters were exempted from the requirement to leave the FPS or the NFPS and transfer to the new 2015 Scheme. We argued at the time that all firefighters who were already employed in the fire and rescue service should be permitted to remain in their pre-existing scheme. We also argued that the proposed design of the new scheme was completely unworkable because it pre-supposed that firefighters would be able to continue working in operational roles until they reach age 60. Despite the extensive evidence we submitted to support our case, the government refused to accept our case.
Instead it exempted some, but not all, existing employees, allowing them to remain in their old scheme – either on the basis that they would never have to transfer or on the basis that they could remain in their old scheme for a while but would have to transfer sometime between 1 April 2015 and 31 March 2022. In broad terms, anyone who was in the FPS and was 48 years old or more when the new scheme was introduced would remain in the FPS. Anyone who was aged between 44 and 48 would have to transfer, but at a later date depending on how old they were. The same arrangements were made for members of the NFPS, but the relevant ages for NFPS members were ages 53 and 49.
These categories of “fully protected”, “taper protected” and “unprotected” were determined simply by reference to proximity to retirement. The Government ignored the point (which we made) that many FPS members expected to retire somewhere between age 50 and 55. Instead, the rule which it laid down was simply based on age on 31 March 2015.
Either way, proximity to retirement is simply another way of saying that someone is older. That means that older members receive protection and younger members do not, raising obvious age discrimination issues.
We all recognise that the sex and race profile of the fire and rescue service has changed in recent times. The consequence is that female and BME firefighters are more likely to be younger. Discriminating against younger firefighters has the effect of indirectly discriminating against female and BME firefighters.
All of that was admitted by the Home Office and the Welsh Government, who were the Respondents to the test cases being fought (these test cases concern firefighters in England and Wales but the outcome will be the same in the Scottish and Northern Irish cases we have lodged). But they said that the discrimination was lawful.
Sometimes discrimination can be lawful. But it is up to the discriminator to prove that. To do so, they have to show that:
What they were trying to achieve was a “legitimate aim”; and
Their discriminatory conduct was an appropriate and reasonably necessary way of achieving their legitimate aim.
The Government lost on all counts in the judges’ case, and we are confident of our case for the same reasons.
What was the Government trying to achieve – what was the “legitimate aim”?
The Government said that the reason for setting the age-defined categories for protection was to preserve the position of those who were closest to retirement.
Saying someone is closer to retirement is just another way of saying they are older. As the Employment Tribunal Judge said in the judges’ case, this:
“amounts to a declaration of intent to do precisely that which the statute prohibits.”
Faced with that, the Government said that younger firefighters would not yet have any settled intentions regarding their retirement, and could fairly be expected to be more flexible in their retirement planning. Our legal team’s response was to ask what exactly could younger firefighters do? Either they would have to start to save a small fortune to replace the pension taken away from them or they would simply have to get used to being poorer in retirement. Saying someone has more time to adjust is just another way of saying they are younger.
The Government ran the same argument in the judges’ case, and lost.
The Government also said that it has a legitimate concern to ensure that pensions are affordable, and if the available resources are limited then hard choices might be made which discriminate but which are nonetheless justifiable.
There are two problems with that argument. The first is that to justify age discrimination, the legitimate aim has to be something which amounts to a social policy objective such as smoothing distortions in the labour market, enabling younger workers to enter it, or allowing older workers to retire with dignity. Saving money is not such an object.
The second is that if resources are limited they need to be targeted, and as it happens the Government’s plan targeted them at members who have already accrued most of their pension and who therefore, it can be argued, need protection the least.
The Government ran the same argument in the judges’ case, and lost.
The Fire and Rescue Authorities, as the employers, were also Respondents to the claims. They came up with a different reason which, they said, amounts to a “legitimate aim”. They said that there is a perceived need to improve the “fitness culture” (as they put it) in the fire and rescue service; that would take time; and protecting older firefighters from the struggle to improve and maintain their fitness by allowing them to retire at age 50-55 was a legitimate aim.
That won’t wash for two reasons. First, the evidence shows that younger and older firefighters will all struggle if they were not recruited at an appropriate fitness standard. Secondly, that’s not what anyone said at the time, and it’s not what the Westminster and Welsh Governments are arguing now.
In short, the Governments (and the employers) had to come up with a clear and precise answer to the question “why did you do this?” What came out was not clear or precise, and essentially amounted to a decision to discriminate against young firefighters because it felt like the right thing to do. Going back to the decision in the judges’ case, this amounts to a declaration of an intention to do precisely what the Equality Act says the Government is not allowed to do.
Was the Government’s attempt to achieve its aims “appropriate and reasonably necessary”?
The Government does not get on to this question unless it satisfies the Tribunal that it had a legitimate aim in mind. We have argued that it cannot cross that hurdle, for the same reasons it didn’t in the judges’ cases.
Its attempts to do so make interesting reading however. This test is essentially a balancing exercise. How badly are younger firefighters affected, and how important was the Government’s “legitimate aim”?
What came out was that the Government did not conduct any real analysis as to how damaging the new 2015 Scheme is. It didn’t do so for the judges either. It was more concerned with ensuring that the same transitional protections applied in all of the public sector schemes. In our view, it did not do the basic homework and it lost on this point in the judges’ case for that reason. We believe it should lose the point in our cases too.
More interesting for our campaign is the work that the Government did do when it looked at how workable the new 2015 Scheme is.
The DCLG (which was then the responsible Government department) looked at the Williams review and concluded that there is a severe risk that the averagely fit firefighter will not be able to continue working until age 60. (This was a point we made consistently). DCLG pointed that out to the Treasury. The Treasury refused to change its position because it did not want to rock the boat in relation to the changes it was forcing through across the public sector pension schemes. Consistency was more important than realism to them.
What happens next?
The Government said that it will appeal the judges’ case even before the decision was published. Our lawyers think that the decision stands up to scrutiny, but an appeal is still likely. It is also likely that the Government will appeal our cases as well if, as we hope, we are successful.
We are now discussing with our legal advisors the steps which the Government might take if we are successful, including an appeal and how they might have to address the discrimination which we hope to have proved to have been unlawful.
Obviously this is a complex case and will take time. We will keep FBU members informed as further information becomes available. It is worth noting that the FBU is the only fire service organisation challenging this outrageous attack on fire service pensions.