Pensions: Appeal against age discrimination

Members will recall that in March 2017, the FBU filed an appeal 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.

As an added complication the Employment Appeal Tribunal (EAT) is also hearing the Government defend a nearly identical claim that was made by 210 judges. The judges won, and the Government filed an appeal.

The appeal began on Monday 11 December and is scheduled to run for four days.

The focus so far has been on the judges’ case and issues specific to firefighters will be argued on day three. Our QC, who represents the judges as well as firefighters, takes up the argument for the judges today (12 December). The Government has admitted that the transitional arrangements for the 2015 judges’ and firefighters’ pension scheme are age discriminatory. The issues are first, whether the Government was pursuing a ‘legitimate aim’ when it decided not to treat all firefighters who were already in the Firefighters Pension Scheme (FPS) in 2015 in the same way, and secondly, if it was, whether the means it used to achieve that aim were ‘appropriate’ and ‘reasonably necessary’. The same questions are relevant for firefighters who were members of the NFPS and who had to move to the 2015 Scheme, but so far the focus is on FPS members who suffered the worst by the enforced move.

What the EAT Needs To Decide

The Government says that it has a relatively free hand in deciding what is or is not a ‘legitimate aim’: it is a political or moral or social policy question. They say that European law gives European Union (EU) governments a fair degree of autonomy in making their political, moral and social policy decisions.

It is clear that this is where the battle lines are being drawn. We say (and the judges say) that whatever flexibility the EU legislation may allow any government when deciding its social policy, having drawn a line it must then apply it in the same way to its own employees as it requires other employers to apply it to theirs. UK law applies to discrimination against firefighters in just the same way that it applies to private sector employees – it would be no use for a private sector employer to argue that it had political or moral or social policy reasons for choosing to discriminate against its employees.

The Government also said that this case is not about discriminating against younger workers in favour of older workers, it is about protecting workers who are ‘closer to retirement’. The difference, they say, is that this argument is not about money, it is about the Government’s sense of responsibility towards employees who have already formed fixed expectations about when they will be able to retire.

The Employment Tribunal criticised the Government’s approach in the judges’ Employment Tribunal decision, because having said the decision was about political or moral or social policy, the Government failed to back it up with any evidential analysis to justify it . The Government says it is impossible to provide any evidence-based reason to justify a political or moral or social decision. That might be true, but there is a balancing exercise – how did it balance its own needs against the damage it would do to its employees. It is then up to the Tribunal, not the Government, to reach a conclusion whether the Government got the balance right.

Having argued that protecting workers closest to retirement was a ‘legitimate aim’, the Government went on to say that introducing a system which dictated that older workers will never have to transfer to the 2015 Scheme (or will transfer after a tapering period) was an appropriate and reasonably necessary means of achieving it. The Government claims leeway in deciding what is appropriate and reasonably necessary – it is up the Government to decide, on political, moral or social grounds. But, in the private sector, the tribunal would have to make up its own mind whether there was a proper balance between the employer’s needs and the damage to its (younger) employees. The employer could not claim the right to decide for itself.

The Next Steps

The peculiarity of dealing with two appeals at the same time means that our QC will be defending the judges’ Employment Tribunal decision and at the same time attacking the decision that a different Employment Tribunal made in our case.

This will be all about the legal principles – what is a ‘legitimate aim’ and what is ‘appropriate’ and ‘reasonably necessary’. How the principles apply to the introduction of the 2015 Firefighters’ Pension Scheme will be argued on Wednesday (13 December 2017).

The outline of the arguments have been reduced to written skeletons which run to hundreds of pages. The supporting documents fill seven lever-arch files, and the cases which everyone is relying on run to thousands of pages. The hearing is scheduled to last for four days, but a judgment is not likely to be produced for many months.

The FBU will keep you posted with developments. Check back later in the week where we will post another blog summing up the case.

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