AGE DISCRIMINATION ISSUES: JOINING THE FPS AT AGE 18 OR 19
Members will be aware of the problem encountered by firefighters who join the Firefighters Pension Scheme (FPS) below the age of 20. By the age of 48 or 49, they will have achieved the maximum pensionable service (30 years) and the maximum pension (2/3rds of pensionable pay). But they either have to carry on contributing until they retire, for no apparent appreciable gain, or opt out of the FPS, in which case they are treated as early leavers and can’t draw their pension until they are 60 years old.
Opting out carries with it huge risk, as it means that a member would lose the financial protection that he/she and his/her family have in the event of being injured or killed, on or off duty. Members need to think very carefully before deciding to stop contributions at the age of 48 or 49 or come to that, at any age.
The rest of this Circular is concerned with overcoming the problems caused by these “two wasted years”.
It has been against the law to discriminate on the grounds of age since the 1st October 2006. The FBU has examined a number of possible challenges to the way the FPS operates in the light of this new legislation. Our solicitors have recommended a number of ways forward, and also a number of dangers that might lead to less favourable terms.
The FBU will fight the cases that stand a realistic prospect of success. Rules that prevent a pension scheme member from building up further pension benefits after they have reached a limit on the number of years of service that can count, and rules that prevent a pension being paid below a specified minimum pension age are specifically exempted, in the law of the UK, from the prohibition against age discrimination. We have been looking to see if a challenge can be made based on European law. The advice that we have received is that such a challenge is unlikely to succeed.
We are aware that a firm of solicitors based in Manchester is encouraging firefighters who joined the FPS below the age of 20 to start proceedings in the Employment Tribunal. The FBU is not supporting those claims and any firefighter who takes this advice will have to do so at their own expense. The FBU will only bear the risk of having to pay the legal costs of the cases that it believes stand a reasonable prospect of success, and which its own solicitors are fighting on behalf of the union and its members.
Members are advised that the same law firm has represented firefighters in another case in the North-West in recent times. The result was that the firefighters lost their legal challenge, having been assured no doubt that they had a good chance of success. It is of note that a number of those firefighters are now in debt, having taken out loans from the Fire & Rescue Authority which employed them, to finance the legal challenge.
The Manchester solicitors have said that the FBU is openly hostile to members who pursue the claims that they have recommended. That is not the case. The FBU has long-recognised the unfairness of the “two wasted years”, and of course many union officials are in the same position as other members who joined the service before the age of 20. It is simply that we do not believe that they will succeed, but we are still examining all of the claims that might be brought on the basis of the new age discrimination law.
It is very important to note that it is not only this group of members of the FPS who might benefit from the new law. The CLG and Fire & Rescue Authorities might well try to use it against us. We believe that they do not want to do so at present, but bringing unfounded claims against them might force their hands, and it will be the FBU and its members who will then be left fighting a rearguard action to protect the scheme.
The FBU is wholly committed to protecting and improving our members’ conditions, pensions and benefits. Members will be aware that our legal team’s advice and performance are first rate, as evidenced by recent notable legal successes on the issues of co-responding and pension rights for the retained.
A further update will be given to the Executive Council when it next meets in August. Members are urged to attend their branch meetings in order to be fully briefed on the matter.