30 January 2018
TO: All Members
You will be aware that in a case brought by the Fire Brigades Union, the Employment Tribunal decided last year that the transitional arrangements made in 2015 when the new firefighters’ pension scheme was introduced did not discriminate against younger firefighters on the grounds of age. I am pleased to be able to let you know that the Employment Tribunal’s decision has now been overturned by the Employment Appeal Tribunal (EAT).
The case will now be returned or ‘remitted’ to the Employment Tribunal, which will have 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. The EAT agreed with our argument that the Employment Tribunal had to conduct this balancing exercise and failed to do so.
In a parallel decision also handed down today, the EAT dealt with the similar transitional arrangements made with the new pension scheme for judges created in 2015. In the judges’ case, the Employment Tribunal did analyse the damage that the new arrangements did to younger judges and found that the balance did not justify the imposition of transitional arrangements. The EAT has upheld that decision. Because the judges’ Employment Tribunal had conducted the balancing exercise (and found against the Government), there is no need to remit their case to the Employment Tribunal.
The EAT also agreed with our argument that the transitional arrangements potentially discriminate on the grounds of sex and race because female and B&EMM members are disproportionately likely to be younger. That issue has also been remitted to the Employment Tribunal for further consideration.
The EAT did not agree with all of our case. We said (and so did the judges) that making transitional arrangements that favour members just because they are nearer to retirement can never be a legitimate aim and can never be justified – being ‘nearer to retirement’ is just another way of saying ‘older’. The judges won this point in the Employment Tribunal, but that part of their decision has now been overturned by the EAT. So far as the judges are concerned that does not matter. They won overall because of the balancing issue mentioned above.
What this means is that, as matters stand, we would end up in the Employment Tribunal on the basis that the Government is entitled to protect the position of older firefighters but not their younger co-workers, and our criticism of the Government’s position would have to be limited to challenging the unfairness of the impact on unprotected firefighters. We have presented a legal case based on the argument that the Government is not entitled to protect some firefighters and not others if the distinction is age, no matter how the line is drawn.
The Government says it intends to appeal our case and the judges’. We will use this opportunity to appeal on the legitimate aim issue mentioned above because if we are successful on that, there is no need to balance the Government’s aims against the damage they caused to younger members at all.
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 EAT enable us to continue with our challenge.
We will be discussing all these issues in the coming days and members will be kept updated.