Govt defeated on 'discriminatory' changes for firefighters and judges

The decision is the latest twist in a saga dating back to 2016, when the Fire Brigades Union raised a legal challenge on behalf of 6,000 members about age discrimination, equal pay, race discrimination and sex discrimination.

As part of government changes to all public sector pension schemes, the new 2015 Firefighters’ Pension Scheme was introduced, replacing the final salary arrangement with a career average revalued earnings scheme.

Transitional arrangements were established to protect people who were closer to retirement age, but firefighters are angry that the protection offered favours older members even if they have a shorter period of service.

At the beginning of 2017, the Employment Tribunal concluded that the transitional arrangements for the new 2015 Firefighters’ Pension Scheme did not discriminate on the grounds of age, sex or race.

Following the employment tribunal’s decision, the union decided to appeal.

Tribunal upholds union view

In a December 2017 hearing the Employment Appeal Tribunal decided the original employment tribunal did not properly consider whether the changes to the firefighters’ scheme were proportionate. The case will now be returned to the employment tribunal.

The tribunal failed to “weigh up properly the government’s alleged need to implement the 2015 transitional arrangements against the damage that they did to firefighters who missed out on protection just because of their age”, according to FBU general secretary Matt Wrack.

In an update to union members, he said the appeal tribunal agreed with the firefighters’ argument “that the employment tribunal had to conduct this balancing exercise and failed to do so”.

The appeal tribunal said the original tribunal only applied a “margin of discretion” approach when considering whether the actions of the relevant government departments now responsible for firefighters’ pensions in England in Wales “were proportionate”.

Government defeated over judges’ case

Also at the beginning of last year, a group of judges won a similar legal case regarding race, sex and age discrimination surrounding changes made to the Judicial Pension Scheme in 2015. The government subsequently announced plans to appeal the employment tribunal’s ruling.

The appeal tribunal's decision was published on Tuesday, at the same time as the publication of its decision regarding the firefighters' case.

The appeal tribunal dismissed the government’s appeal, meaning that there is no need for the judges' case to be remitted to the employment tribunal.

A Ministry of Justice spokesperson said: “We recognise and value the important role of the judiciary.

“We are considering the court's findings and whether to pursue an appeal against this judgment.”

Stephen Scholefield, partner at law firm Pinsent Masons, said the fact the judges were successful was not surprising.

“Discriminatory treatment is only permitted if it is a proportionate pursuit of a legitimate aim. In the case of the judges, the government did not convince the Employment Tribunal that the discriminatory treatment was proportionate,” he said.

Scholefield explained that this is because it focused on the implications for public sector schemes as a whole, rather than on the judges’ scheme. He added that the appeal tribunal "agreed and believed that the Employment Tribunal was correct to properly scrutinise whether the changes were proportionate, rather than leave this to the government”.

A long hard fight

While the firefighters “may yet go to the same place”, their case needs further consideration, having been remitted to allow proper scrutiny to take place, Scholefield added.

This does not give the firefighters everything they want. “It was unsuccessfully argued that the proportionate issue never arises, as there is not a legitimate aim in the first place. Here, the [appeal tribunal] ruled in favour of the government, giving it more leeway as to whether a legitimate aim exists,” said Scholefield.

If both cases are appealed then the two questions, in terms of what is proportionate and what is a legitimate aim, will be explored again.

“The implications are clear, and expected – if you argue discrimination is justified, don’t be surprised if those on the wrong end disagree and if the legal system believes proper scrutiny is required,” Scholefield added.

Vikki Massarano, partner at Arc Pensions Law, noted that both cases concluded that there was legitimate aim, the key difference is whether it was justified to bring in the transitional protections.

“We’ve not seen the end of these – I think – by a long chalk… what will be really interesting in the firefighters’ case is to see what the employment tribunal concludes when they reconsider using the wider test that the [appeal tribunal] say they’ve got to use,” she said.

The FBU's Wrack said: “This is sure to be a long hard fight. We remain confident in our arguments and although we cannot give any guarantees, the decisions of the [appeal tribunal] enable us to continue with our challenge.”