Bushfire of pension discrimination cases spreads to firefighters

A number of pensions discrimination cases have made the headlines in recent months: a group of judges is fighting a similar battle about reforms to their pension scheme, while a Lloyds Bank trade union has recently launched legal action in a bid to close a defined benefit pay gap for women.

“We’ve raised an issue around age discrimination, around equal pay, around race discrimination and around sex discrimination,” said Sean Starbuck, national officer at the FBU.

As part of government changes to all public sector pension schemes, the new 2015 Firefighters’ Pension Scheme came into force, replacing the final salary arrangement with a career average revalued earnings scheme. Prior to this, members were part of the 1992 scheme and the 2006 scheme.

Transitional arrangements were introduced to protect people who were closer to retirement age, but Starbuck said “firefighters are really angry” with the protection that has been offered.

“This situation is that... at this moment in time, you could have two firefighters who joined on exactly the same day, got exactly the same length of service, [but] because of their age one person’s protected and the other one’s got no protection at all. So it is quite a big issue for firefighters,” he explained.

The union raised the challenge on behalf of 6,000 members, and uses test cases from around the UK.

This “includes arguments relating to age discrimination but also incorporates further claims around race, gender and equal pay”, states an update for union members published in July.

A technical hearing was held over three days starting on May 31 2016, and the next step is a preliminary listed case management hearing on August 31 2016, according to the update.

During the technical hearing, there was a claim that the FBU had brought its case too late,  according to the update, after the time limit for discrimination cases. "[Fire and rescue authorities] are also suggesting that some of our claims are out of time because the scheme was introduced on 1 April 2015," the FBU update states.

However, the union said the discrimination is still happening. “The affected members are continuing to be discriminated against because of the protection arrangements,” it states.

The update adds that the case centres on the issue that it was the legislation that compelled the government and employers to discriminate. 

Starbuck said one of the union’s arguments against this was that the legislation should not have been written in that way in the first place.

“We’re planning for a lengthy case on this,” he added.

Risk of disappointment

Alice Honeywill, partner in law firm Burges Salmon, said: “It is permissible to have age-related provisions, whether directly or indirectly, but they have to be objectively justifiable.”

She said age discrimination is “always going to potentially be an issue” when it comes to pensions, and there is always a risk that the way transitional protection is designed will disappoint some people.

“But if you don’t give any transitional protection… you equally face claims that you’ve not been fair and that you’ve unfairly prejudiced those people who are close to retirement and are unable to make alternative arrangements,” Honeywill said.

Brexit’s effect on age discrimination cases

Anna Copestake, senior associate at law firm Arc Pensions Law, said age discrimination arguments may have to be interpreted in light of EU cases and EU law. She added that it will be interesting to see what happens in light of Brexit.

“The non-discrimination law that we have is enshrined in UK law” but it flows from a European directive, she said. Post-Brexit, the UK will still have non-discrimination laws, but when it comes to interpreting that, sometimes the UK courts refer back to the European courts, or look at past European cases.

Copestake said that when the UK leaves the EU, there is uncertainty as to whether UK courts will still look back at previous European judgements when looking at anti-discrimination law.

If this does affect long-running cases that started before the UK’s EU referendum result, Copestake said it could mean “arguments have to change tack half-way through”.