Dear Brother/ Sister
Pensions Update: Immediate Detriment High Court Claims Defendants Response
You will be aware that legal proceedings were issued in the High Court and served 3 March 2021 in order to force Fire and Rescue Authorities (FRAs) to pay our retired members the pension that they are entitled to, the pension that they earned serving their communities.
These proceedings were served on behalf of an initial three test claimants who have already retired and who are receiving a smaller pension than that which they should be receiving – examples of what have been referred to as the ‘immediate detriment’ cases. The FBU believe that success on behalf of these initial three test claimants will set a precedent for the treatment of hundreds of other retired FBU members currently being denied their correct pension and for those approaching retirement.
The FBU has been forced to issue these High Court proceedings due to the inaction of employers (FRAs) in addressing these immediate detriment cases. Following the most recent Employment Appeal Tribunal (EAT) judgment, the employers have no possible defence for their inaction. They have known since 2016 that they would have to address these cases for our members who have already retired and who are already losing money. The FBU has taken this action because even though the courts have told the employers that they don’t have to wait to pay our members what they are owed most employers have indicated that they will still await further government guidance from the Treasury and the tax authorities. No further guidance is required. The courts have made it plain what they must do.
Defence of the first and second respondents
The Fire and Rescue Services in these cases (the defendants) have responded to the claims with a defence, which we are advised by our lawyers, is wholly without merit. That is incredibly disappointing and in the Union’s view an unnecessary stalling tactic.
The defendants seek to have the issues raised referred to an employment tribunal as they believe the ET is the natural forum for determination of such claims. They also state that they reserve the rights to make any appropriate application in the light of the above including an application to strike out these proceedings. It is a pointless suggestion. The Employment Tribunal has already made its ruling. The FRAs are ignoring it, and that is why we have had to go to the High Court to force them to do what they know they have to do.
The claims made by the FBU on behalf of our three test cases members are that both defendants have been in breach of duty from at least 27th June 2019 in not applying the FPS 1992 to the claimants.
The 27th June 2019 was the date on which the Supreme Court refused permission to the defendants in the Court of Appeal case to appeal to the Supreme Court. The defendants claim to have acted lawfully to meet the legitimate claims of the firefighters but state that at that same time FRAs have a duty as public bodies to act lawfully and within their powers.
The FRAs state they have rightly and justifiably been seeking vital clarification of their powers in the context of these claims. They believe they are entitled and obliged to await clarification on those issues prior to seeking to process claims. That is simply not the case. No further clarification is needed from the courts. They have already told the FRAs what the law requires.
Current position
It should be noted that yet again the employers, whilst not denying that they have not acted on the respective judgments issued, have again resorted to a defence of ‘this is unfair’ stating they were not responsible for the discrimination. This is despite the most recent judgement handed down from the Employment Appeal Tribunal (EAT) 12 February 2021 stating that they were responsible for the discrimination under their lawful duties as administrators of the schemes, and are obliged to allow members who joined before 1 April 2012 to be treated as members of their former pension scheme if that is what they wish. That is what the scheme rules require.
They have suggested that the FBU agree to a stay of proceedings, the defendants propose that in discussing a settlement of this claim the parties also discuss and agree a framework for remedying all immediate detriment claims that they (or the other FRAs) may face. That framework would include a mechanism and process for dealing with the range of issues that arise on immediate detriment claims (not just the issues specific to the current claim as identified in their defence). They further state that in order for a wider discussion about a framework for resolving all immediate detriment claims to work for all parties that it is important that the FBU, and as appropriate, central government are involved.
Fire Brigades Union response
This process has already taken far too long despite the clear decisions and directions from the various courts, this has resulted in financial detriment for retired members and uncertainty for those approaching retirement.
Whilst a further period of dialogue is clearly attractive to employers it is a far less attractive proposal for the union. Any agreement between the union and the employers for dialogue on this issue (particularly as the employers suggest central government involvement) could be a lengthy process.
FRAs receiving complaints from members in relation to immediate detriment cases would simply then refer members back to the union citing the union dialogue with the employers as the reason for the delay in processing retirements under the legacy scheme or paying the correct pension to those who have suffered and/or continue to suffer financial detriment, the employers may effectively try to to blame the union.
Therefore, the FBU has responded to the defendants stating that the proceedings will not be stayed, that the three test cases will continue and that we will continue to pursue a hearing date for summary judgement. However, we will commit to enter into dialogue as suggested by the employers, but that the summary judgement hearing date, once known, becomes the deadline date for any talks with the employers and/or their representatives to conclude by. We can then seek to resolve (as the employers suggest and if possible) all the immediate detriment cases within that timeframe.
Yours in unity.
MARK ROWE
National Officer
