PENSIONS: APPEAL AGAINST AGE DISCRIMINATION – DAY 4 AND GENERAL SUMMARY

CIRCULAR:            2017HOC0654DG

 18 December 2017 

Dear Brother/Sister,

 

PENSIONS: APPEAL AGAINST AGE DISCRIMINATION – DAY 4 AND GENERAL SUMMARY

Day four (Thursday 14 December 2017) began with the Government’s defence of the Employment Tribunal’s decision which, their QC said, was more complete and coherent than the Tribunal’s decision in the judges’ case. He characterised our assault on it as an allegation that the decision did not set out sufficient reasoning to justify the conclusions that the Tribunal had reached.

 

In much the same way that we did, he went through the judgment paragraph by paragraph. He argued that the Employment Judge correctly summarised the case that both sides had put to her, meaning that she understood the arguments, that she set out the key facts on which the arguments were based, and having done so she could not be criticised for saying that she preferred one side of the argument to the other.

 

In dealing with the facts as found by the Employment Judge, their QC noted that the Government didn’t decide to offer transitional protections “as a sop to the trade unions” – but because it decided that those who were closest to retirement needed the greatest protection. He said that being closer to retirement is not just the same as being older, because workers who are closer to retirement have a more lively interest in when they can retire and what their pension will be. That, he said, is not an issue which is solely about the financial consequences of offering protection to some but not to others – it is about fairness as a matter of social policy or political judgement, which are for the elected Government to make.

 

There was some discussion about what the role of the trade unions had been. The Government accepted that the FBU’s position had always been that it wanted full protection for everyone, but when that wasn’t accepted by the Government, it promoted the Scottish Government’s position as a fall-back, arguing that protection should be calculated from the age at which each firefighter expected to be able to retire, between ages 50 and 55, and not from age 55 for everyone. The Government’s QC said that this fall-back position was also discriminatory but, pressed by the Judge, he accepted that what the FBU or the TUC as a whole might have been prepared to accept was irrelevant. The FBU has challenged the Scottish Government’s ‘solution’, and anyway an employer is not permitted to discriminate simply because a trade union has asked it to do so.

 

Our QC came back by saying that the case isn’t about whether or not the Employment Judge understood the factual or legal issues, it’s about whether she subjected the Government’s decisions about transitional protection to any proper scrutiny. She didn’t analyse the facts that the Government put forward as the basis for its decision, and it is not enough to say that the Government may well have good social or political reasons for doing what it did. The Government has to provide concrete and rational reasons for doing what it did, which the Tribunal must then weigh up for itself. What the Employment Judge actually did was surrender her role altogether – the law says there must be a balancing exercise, based on the concrete evidence, and that balance must be struck by the Tribunal. The Employment Judge allowed the Government to strike the balance without examining the issues herself.

 

The parties then dealt with the arguments about sex and race discrimination, and equal pay. The reason why they arise at all is that as time has gone by, the sex and racial balance of the fire and rescue service has become less predominantly white and male; so if you discriminate against younger members you also discriminate indirectly against female and BME members. Looked at in terms of equal pay, there is a hidden consequence: if the age discriminatory barrier is removed so that younger female firefighters are given full protection, then the same protection must be given to younger male firefighters – otherwise they are discriminated against on the grounds of their sex.

 

The legal tests for indirect discrimination (on the grounds of sex and/or race) and equal pay are slightly different from the test for direct age discrimination. The Fire and Rescue Authorities’ QC, who argued the case on this point for the other side, said that we were trying to turn an age discrimination case into a sex or race claim but, he said, producing statistics showing that younger firefighters are more likely to be female or of BME origin doesn’t mean you can turn one claim into the other – you have to show that sex or race is the reason for the less favourable treatment.

 

Our QC pointed out that as a matter of law, recently decided by the Supreme Court, that’s not right. You have to show that the same sort of provision, criterion or practice causes one category of member to be disadvantaged, but if the advantaged and disadvantaged categories have a statistically significant gender or race imbalance, you do not have to show why. The employer has to justify the provision, criterion or practice.

The day finished with an agreement, first raised at the end of day three, that the Fire and Rescue Authorities’ appeal on a technical issue will be dealt with at a subsequent hearing. They say that they should not be in the firing line because they were only doing what the regulations told them to do. They lost this argument in the Employment Tribunal, but if we win our appeal they will be able to raise it again. Importantly, the Government could not raise this defence.

 

 

What Happens Next?

The Judge said he would let us have his decision in the second half of January.

 

Bearing in mind that we are dealing with two appeals – ours and the judges’ – and bearing in mind that the findings of fact in the judges’ case are fairly clear but they are almost entirely absent in ours, there are a number of possible permutations. We could both win, with the EAT concluding that the Government did not have a legitimate aim at all, in which case the Government would have to decide whether or not to appeal to the Court of Appeal. The EAT might conclude that the Government did have a legitimate aim, but there was no proper balance struck in the judges’ case (in which case the judges win altogether), but in our case the balancing exercise was not conducted at all, in which case we end up back  in the Employment Tribunal so that it can be. We might end up being separated from the judges again.

 

It is also possible that the EAT will refer our case to the Court of Justice of the European Union for clarification of one issue of European law: if a discriminatory provision is introduced for political reasons, what evidence must the Government offer to justify it, and how should the court balance the political need against the damage that it does to employees who are discriminated against?

 

Some Reflections On The Arguments

Despite the thousands of pages of evidence presented to the EAT, both cases are going to come down to a few key legal principles.

 

Everyone knows that the transitional protections discriminate on the grounds of age. The Government has admitted that. Everyone knows that the discrimination is direct discrimination – you win or lose just because of your age, not because you fail to meet some other criterion which, as it happens, turns out to be linked to age.

 

Direct age discrimination is unusual because unlike direct discrimination on the grounds of sex, race or other protected characteristics which can never be justified, direct age discrimination can be. It is permitted in European law and also in UK law, but the tests are different:

 

  • In European law, EU member States may provide that differences of treatment on grounds of age do not constitute unlawful discrimination if “they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”. So some margin of discretion is allowed for discrimination on social policy grounds.
  • In UK law, direct discrimination is permitted if the Respondent can show that its treatment of the Claimant was a “proportionate means of achieving a legitimate aim”. So there is no express margin of discretion for discrimination on the basis of some social policy objective. This provision applies in the private sector too, where social policy cannot have very much scope (if any).

 

The key question is whether the Government, when making pension provision for its own employees, has to meet the requirements of both (as we say), or whether it only has to meet the European law threshold (as the Government says). Does the Government have more right to directly discriminate on the grounds of age against its own employees than a private sector employer?

 

If meeting a social policy objective is enough, what sort of social policy meets the mark? Previous cases have given some examples of what is enough, usually in the context of imposing a compulsory retirement age – freeing up employment or promotion opportunities for younger workers, for example, or allowing employers to retire older employees without having to go through an undignified capability procedure.

 

But what sort of social policy are we dealing with exactly? The Government’s case on this issue has been a moving target. It started by saying that younger workers did not need protection because they had enough time to make good any damage to their pension. That quickly unravelled: the cost of making it good is extortionate, it simply transfers the burden of a smaller pension tomorrow into lower take-home today after additional pension saving is taken into account, and anyway the people who are in the least need of protection – those who already have the biggest accrued pensions – are the ones who get the biggest advantage.

 

So the Government changed tack. It said that the objective (the ‘legitimate aim’) was to protect workers who were closer to retirement in the sense that they had more concrete plans for their retirement. It becomes a question of what feels fair, not what the financial consequences are. It changed again, and said it was to protect those who were closer to retirement in the sense that they had most cause to believe that their pension arrangements would not be disturbed in their final years – don’t upset the expectations that they had been led to believe in.

 

And if meeting a social policy aim is enough, what does the Government have to do to prove it? It should be common ground that the tribunal’s role is to balance the legitimacy of the aim that the Government is trying to achieve against the disproportionality of the effects on different age groups. The Government cannot say it will discriminate one way or the other just because it feels ‘fair’ to do so. The European cases make it clear that mere generalisations will not do. A proper explanation, backed up by evidence, must be provided so that the tribunal can reach its own judgment in the balancing exercise.

 

And what role can, or should political considerations play? The Government made much of the fact that these decisions were taken at Cabinet level, affected millions of public sector employees, and went through Parliament. The more ‘political’ the decision, according to the Government’s case, the less inclined the courts should be to become involved by demanding concrete evidence of the objectives it was aiming to achieve and the means it was using. But if that’s right, where do you stop?

 

There is plenty here for the judge to think about.

 

In closing, can I thank Andrew Short, our QC, and Lydia Seymour, our junior barrister, as well as Ivan Walker who has helped us navigate our way through these complex issues and made these reports understandable to our officials and members.

 

Many thanks.

 

Yours fraternally,

DAVE GREEN

National Officer

 

 

 

DG/kc

Posted in Pension

Pay 2017

16 November 2017

TO: All Members

Dear Brother/Sister

 

Pay 2017

 

Members will recall from circular 2017HOC0518MW that the fire service employers had proposed that NJC pay rates should be increased by 1%. This was in response to the rejection of their previous proposals following a consultation with FBU members.

 

Following further dialogue with the employers and requests for clarification by the Executive Council, it has been confirmed that this proposal is not conditional on any other matters. Nor would it be considered as necessarily a final settlement of pay in relation to the current pay round.

 

As a result, the Executive Council agreed to consult members on this proposal and to recommend that the union should agree that NJC pay rates should be increased as suggested. This consultation will conclude at the December business meeting of the Executive Council (5-7 December). All branches should consider this proposal within this timescale.

 

Best wishes.

 

Yours fraternally

 

 

Matt Wrack

General Secretary

 

 

MW/sll

Posted in Pay

Please complete the Staff Survey

Dear Colleague

We are issuing this communication jointly to encourage all staff members to support and respond to the staff survey.

It is crucial that we collectively understand how staff feel about working in the organisation.  It helps both managers and Trade Unions focus on the areas that matter most to you.

Individual responses are confidential and are not shared with the organisation.  The overall responses are shared openly and published.

We have a shared aim of making employment with WYFRS the best it can be and so we ask all of you to give up 10 minutes of your time to help us achieve that aim.

Thank You.

Ian Brandwood                                                                     David Williams                                 

Chief Employment Services Officer                                   FBU    

                                                       

Posted in Uncategorized

The NWC AGM is to be held at Wortley Hall, Sheffield on Monday 20th November 2017

The NWC AGM is to be held at Wortley Hall, Sheffield on Monday 20th November 2017. Issues that are affecting you can be voiced and heard in this motion based AGM. So if you’d like to get involved, speak to a rep near you to raise your issues, formulate a motion and submit this as as resolution. If you don’t have a rep and would like to get involved, please contact Sam Rye or Sarah Gartland via Facebook, email, text etc. We look forward to seeing you there

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Posted in Uncategorized

Cessation of Trials of EMR and Other Work

Dear Brother/Sister

Cessation of Trials of EMR and Other Work

The Executive Council met today to report and discuss the outcomes of the membership consultation which commenced on 23 August 2017. The wider outcomes of that meeting will be the subject of a related circular which will be issued today (Circular 2017HOC0500MW). This circular confines itself to reporting the implications of that discussion in respect of the trials of EMR and other work.

The decision of the Executive Council is that the trials of EMR and other work shall cease.

In order to ensure that as many members as possible are in receipt of this communication from the union before the trials cease, the Executive Council has determined that all work in connection with broadening the responsibilities of the fire service and the firefighter shall cease from and including Monday 18 September 2017.

This means that the position will revert to the situation as it was previously and members will resume working as before the trials.

In practical terms, this means:

For wholetime members working the wholetime shift, ceasing the trials shall take effect from the start-time of the wholetime day shift which operates in your FRS on 18 September 2017. Members who, at that time, are already responding to or in attendance at a call in connection with such work should complete their work until the call has been dealt with. Crews should then make return from the call according to the protocols and norms in your FRS, and for those crews ceasing the trial shall take effect from the time of release from that incident.

For retained members, ceasing the trial shall take effect from the start-time of the wholetime day shift which operates in your FRS on 18 September 2017. Members who, at that time, are already responding to or in attendance at a call in connection with such work should complete their work until the call has been dealt with. Crews should then make return from the call according to the protocols and norms in your FRS, and for those crews the cessation of trial shall take effect from the time of release from that incident.

For members working the day-crewed duty system or similar duty system, ceasing the trial shall take effect from the start-time of the wholetime day shift which operates in your FRS on 18 September 2017. Members who, at that time, are already responding to or in attendance at a call in connection with such work should complete their work until the call has been dealt with. Crews should then make return from the call according to the protocols and norms in your FRS, and for those crews, the cessation of trial shall take effect from the time of release from that incident.

For members who are conditioned to day duties, ceasing the trial shall take effect from the start-time of the wholetime day shift which operates in your FRS on 18 September 2017. Members who, at that time, are already responding to or in attendance at a call in connection with such work should complete their work until the call has been dealt with. Crews should then make return from the call according to the protocols and norms in your FRS, and for those crews, the cessation of trial shall take effect from the time of release from that incident.

For members working in the emergency fire control room, including any joint or shared control rooms, ceasing the trial shall take place from the start time of the wholetime day shift which operates at fire stations in your FRS on 18 September 2017.

Undertaking such work, whether responding to or mobilising others to such calls, is not a contractual requirement and your employer cannot require you to undertake this work.

Any difficulties that you encounter on this matter on 18 September 2017 or thereafter, should be referred to your brigade officials.

We will keep you informed of developments.

Best wishes.

Yours fraternally

Matt Wrack
General Secretary

Posted in Uncategorized

Pay Consultation Result

Dear Brother/Sister

Pay Consultation Result

Following a democratic consultation with our members, the FBU has decided not to accept the proposals on pay made by our employers.

The reasons for this rejection varied between members and across different parts of the union but they included:

  • A lack of clarity and certainty in the employers’ proposals.
  • ​Uncertainty about funding arrangements following years of cuts from central government.
  • ​The failure to clearly address years of falling real wages.
  • ​Concerns about the details of some of the areas of new work under discussion and consideration.
  • ​In at least one case, the introduction of completely inappropriate work into a fire and rescue service through the NJC trials.
  • ​​The failure of some employers at local level to address the serious concerns of staff on operational, safety, training and welfare issues in relation to the NJC trials.

​The FBU, through its conference has set out, debated and agreed a strategy for the future of our service, including discussing with our employers and with governments potential new areas of work and responsibility for the fire and rescue service. The success of these discussions was always dependent on sustainable funding, as well as addressing operational, safety, training and other issues. They were, and remain, dependent on addressing the pay and conditions of FBU members.

It is notable that not one of the governments in the UK (at Westminster, in Wales, Scotland or Northern Ireland) has seriously addressed the issue of sustainability.

These governments (and primarily central government at Westminster) bear the bulk of the responsibility for the situation in the fire and rescue service through their failure to engage with the fire and rescue service employers or with the FBU.

The FBU remains committed to discussing the future of our service, including the need to address the pay and conditions of firefighters. We urge governments to now address the issues of underfunding and investment, including the need to invest in new areas of activity.

As a result of the decision on pay, the current NJC trials on EMR and other work will cease on Monday 18 September (see circular 2017HOC0498MW).

Members are reminded that EMR and other activity outside the agreed role map is non-contractual and therefore employers cannot require or instruct employees to undertake such non-contractual activities.

Best wishes|

Yours fraternally

Matt Wrack
General Secretary

Posted in Uncategorized

Parliamentary Lobby 17th October Volunteers Needed

The Brigade Secretary will be taking a small group of delegates to lobby parliament on the 17th October, HOWEVER we are targeting marginal MP’s with a majority of less than 2,500 votes and guess what? They’re only 2 in our entire region and they’re both in our Brigade.
We could do with 3, 4 or more members who live in either Stuart Andrew or Andrea Jenkins constituency area please.

Anyone living in Horsforth, Yeadon, Guiseley, Farsley, Rawdon, Pudsey for Stuart Andrew or
Gildersome, Morley, west and east Ardsley, Lofthouse, Outwood for Andrea Jenkins and would be interested in the Lobby of parliament please contact Dave Williams ASAP.

Posted in Uncategorized

Death of Firefighter Mark Hattersley (fundraising for the family)

It is with great sadness that we confirm the loss of a serving Firefighter Mark Hattersley who died suddenly on Saturday 12 August.

Avon Fire & Rescue Service Chief Fire Officer Mick Crennell said: “We are all absolutely devastated by the loss of a friend and colleague who was off duty and at home at the time of his death. Our deepest thoughts remain with Mark’s family, particularly with his wife Rachael and their two young children.

“By the nature of the job we do and the time we spend together the fire and rescue service is a very close family. Mark was a popular part of the Bedminster Blue Watch family and was well liked by so many staff across the Service who worked with him. He will be so desperately missed by us all.”

Mark, who was 36, joined Avon Fire & Rescue Service in September 2005 and since that time worked at Kingswood and Bedminster Fire Stations. At the time of his passing he was a member of Bedminster Blue Watch.

Mark’s family have asked for privacy at this sad time.

A Justgiving page has been set up by staff at Avon Fire & Rescue Service to raise money for Mark’s family.  Anyone wishing to donate can do so by clicking here https://www.justgiving.com/crowdfunding/james-britton-2?utm_source=facebook&utm_medium=socpledgedesktop&utm_content=james-britton-2&utm_campaign=post-pledge-desktop&utm_term=vGG3bM9pQ

Posted in Uncategorized

Pay Offer EC Recommendation

Full details on the offer should be confirmed on Friday 25th.

23rd August 2017

 

CIRCULAR NJC/09/17

 

 

Dear Sir/Madam,

 

Pay offer – update

 

  1. We write to advise you that following further joint discussion around clarification of the pay offer, the Fire Brigades Union (FBU) will now be making arrangements to consult its membership with a recommendation to accept the offer.

 

  1. You will be aware that the FBU had indicated its intention to withdraw support for the emergency medical response and other work trials running under the auspices of the NJC and instruct its members not to take part with effect from 24th August 2017.

 

  1. Given the position in paragraph 1 above, support for the trials will now remain in place, and the work unaffected, while the consultation process is carried out.

 

  1. Further information will follow shortly.

 

Yours faithfully

 

SIMON PANNELL

MATT WRACK

Joint Secretaries

Posted in Uncategorized

Update: The Executive Council met yesterday (24 July) following consultation with members on the employers proposals on pay and conditions

Dear Brother/Sister

 

Pay and conditions – proposals inadequate

 

The Executive Council met yesterday (24 July) following consultation with members on the employers proposals on pay and conditions.

 

As a result of this consultation with members I can confirm that the FBU finds the employer proposals on pay inadequate in their current form. The Executive Council was clear that, in line with the policy of our conference, we remain committed to continuing discussions on the broadened and broadening role of the FRS, including making the case to government/s for sustainable funding. The FBU remains committed to lobbying around this issue and doing so jointly with employers where appropriate.

 

The Executive Council has continued to receive reports in relation to the NJC trials on EMR. There remain numerous reports of local trials where employers have failed to address the operational, safety and welfare issues set out very clearly by us at NJC meetings and elsewhere this year. This is in clear breach of the requirements the FBU set out to the employers at a national level. The employers have also failed to adequately address the concerns of the union on pay and conditions. Therefore the Executive Council concluded that there can be no agreement to further extend the NJC trials. We have informed the employers therefore that the trials will cease on 24 August. Further advice on this will follow.

 

The union is clear that there will be no local agreements on the issue of EMR and that attempts to bypass this by local employers will only exacerbate an already difficult position. We have therefore advised local officials to alert us to any such attempts through the Executive Council member.

 

We have informed the employers of our position and will await their response.

 

Best wishes.

 

Yours fraternally

 

Matt Wrack

General Secretary

Posted in Uncategorized