Submitted by SWFBU on
11 June 2013
TO: ALL MEMBERS
Dear Brother/Sister,
LEGAL CHALLENGE ON POTENTIAL AGE DISCRIMINATION PENSION ISSUE (18-20 JOINERS)
On Friday 7 June, the Department for Communities and Local Government (CLG) published the Government's response to the consultation on the FPS and NFPS Amendment Order which was issued in August 2011. This response contains a summary of all the submissions made by stakeholders and indicates how Government intends to proceed. Please be aware that these are amendments relating to the present schemes and not the new scheme that is due to be introduced in 2015.
Many of the points it deals with are of a technical nature although some are of significant importance to scheme members including:
• Pensionable pay – changing the definition to take account of the recent Norman v Cheshire ruling
• Commutation – discretion to permit a higher maximum payment
• Removing rule A14 – compulsory retirement on efficiency grounds
• Age discrimination – contributions holiday for members who joined before age 20
• Abatement
The full document can be accessed by following this link https://www.gov.uk/government/consultations/firefighters-pension-scheme
Brigade Committees will be given a fuller briefing on all the issues in due course but this circular relates to one issue in particular.
Potential age discrimination challenge
This is the part of the Amendment Order that deals with the potential age discrimination issue in relation to a group of members of the 1992 Firefighters’ Pension Scheme. This group of members are those who joined before age 20 and are not able to retire under the scheme rules when they have accrued their full 30 years’ pension entitlement because they have not yet reached age 50. It also affects members who have already retired and who found themselves in this position after 1 December 2006 when the age discrimination legislation (for pensions) came into force.
We have previously reported that the Secretary of State had accepted that this was indirectly discriminatory on the grounds of age which could not be justified (and was therefore likely to be unlawful). The earlier consultation exercise proposed a mechanism to address this. This was to have been done by means of an amendment that would introduce a contributions holiday when the affected firefighters reached the age of 48 or 49 and had completed 30 years’ pensionable service.
After months of delaying, CLG has now informed the FBU that, following further legal advice, it does not believe that the matter is discriminatory on the grounds of age. Members will be understandably angry and frustrated that after the long delay in this process, Government has now reversed their previous position.
The FBU has written to CLG to lead a challenge on behalf of all scheme members. The union will argue the case that the current provisions do indeed amount to unlawful age discrimination. Following legal advice, the route for this has been identified as a claim under Part 8 of the Civil Procedure Rules. This route allows a simple declaration to be sought from the Court on whether the current provision is unlawfully discriminatory on the grounds of age or not, without having to go through a lengthy factual argument.
CLG have confirmed that in the meantime, the proposed amendment to introduce a contributions holiday has been withdrawn pending the Court's decision. If, however, the FBU is successful and the Court subsequently determines that the 1992 Scheme is indeed discriminatory on the grounds of age in this respect, CLG will proceed to implement a contributions holiday without any further consultation. They have also confirmed that any amendment is likely to apply retrospectively from the date when the Employment Equality (Age) Regulations 2006 came into force and would apply to all affected members.
FBU legal advisors are in discussion with CLG and any developments will be communicated to members as quickly as possible.
The union has already expressed our anger and frustration at this latest ‘U’-turn by Government which introduces further unacceptable delays and re-examines previously agreed positions.
RDS ‘Modified’ Scheme
You will already be aware that we have also raised serious concerns about the continual delays in implementing the RDS ‘modified’ pension scheme which is intended to address the issue of discrimination against RDS members in their capacity as part-time workers. The Executive Council discussed this at the meeting held in Cardiff on 5 June 2013 and proposed to immediately examine ways in which this issue can be brought into our wider pension campaign, including exploring all legal steps to ensure this is done.
The issue of the modified scheme will be covered in more detail in a subsequent circular.
Best wishes.
Yours fraternally,
MATT WRACK
GENERAL SECRETARY
