In a judgment handed down this week, the Employment Tribunal dismissed all test claims brought by five firefighters alleging that transitional arrangements included in the Firefighters’ Pension Scheme 2015 are discriminatory.
The changes to firefighters’ pensions were part of the wide-ranging public sector pension reforms brought in after the 2011 Hutton Report concluded that since people are living longer, public sector pensions needed to be revised to make them sustainable for the taxpayer.
However, the claimants’ challenge was only to the transitional arrangements in the new pension scheme, whereby those firefighters within 10 years of pension age are protected by being able to remain in their existing pension scheme. There are also a further four years of tapered protection. It was alleged that such arrangements were directly discriminatory on grounds of age.
The Defendants – four Fire and Rescue Authorities, the Home Office and the Welsh Ministers – accepted that the transitional arrangements treat younger firefighters less favourably on the grounds of age, but argued that this is justified since it is a proportionate means of achieving a legitimate aim. The aim is to protect those closest to pension age from the effects of pension reform, given that they would have less time in which to rearrange their affairs before retirement, by making any necessary financial or lifestyle changes.
Judge Lewzey (sitting alone) accepted that this aim was legitimate, and that the treatment of the claimants was a proportionate means of achieving it, and accordingly the claims of direct age discrimination failed. The Tribunal also accepted that those closest to retirement have a greater legitimate expectation that their pension entitlements will not change significantly.
The claimants also brought claims for equal pay and claims of indirect discrimination on grounds of sex and/or race, as female and BME firefighters are disproportionately likely to be in the unprotected group. Male firefighters also brought ‘piggy-back’ equal pay claims. All claims failed.
Behind the five test claimants were over 5000 claims in England and Wales.
Similar claims had been successfully pursued in McCloud & Others v Ministry of Justice in relation to the transitional protection provided within the judges’ pension scheme. Judge Lewzey noted that the McCloud judgment of 16 January 2017 was not binding upon the Tribunal and that she must decide the firefighters’ case on the basis of the evidence and submissions she heard, and in those circumstances she disregarded the McCloud decision in reaching her conclusions.