Transitional provisions in the Firefighters' Pension Scheme 2015 are deemed not to be discriminatory on grounds of age, according to the Employment Tribunal (ET) at London Central, in...
...the case of Sargeant and others v London Fire and Emergency Planning Authority and others.
The Firefighters' Pension Scheme 1992 was closed to new members on 1 April 2006. Existing members continued to accrue benefits under the 1992 scheme but new members joined the Firefighters Pension Scheme 2006. On 1 April 2015 the Firefighters' Pension Scheme 2015 was introduced, which included a transitional provision that anyone within 10 years of the normal pension age (NPA) (i.e. 50 years or over) would remain on the old, more favourable scheme.
A number of firefighters subsequently brought claims of age, sex and race discrimination, together with equal pay through their union. In particular, the Claimants argued that the transitional provisions in the 2015 scheme were age discriminatory as they allowed older firefighters to remain part of the old scheme (which also granted tapering benefits for members who were 10 - 14 years until NPA), whilst members more than 14 years from NPA, in short, younger firefighters, were transferred onto the new scheme straight away because they did not meet the age criterion to qualify for protection, and this meant that they did not receive the same benefits.
The ET found against the Claimants in all respects. The ET decided that although the transitional provisions constituted less favourable treatment on the basis of age, it determined that the respondents had demonstrated that the less favourable treatment was objectively justified (i.e. they were a proportionate means of achieving a legitimate aim).
The ET accepted the legitimate aim as being to protect those closest to NPA and commented that in reaching that aim it was reasonably necessary for the Government to draw a line somewhere. Where to draw that line is a social policy decision for the Government and inevitably some individuals would be disadvantaged. In the circumstances, the decision was proportionate.
The claims of race discrimination, sex discrimination and equal pay failed as the ET found the disparate impact of the transitional provisions was entirely due to age.
We previously reported the ET decision in McCloud and others v Lord Chancellor and another, which related to the transitional provisions in the judges' pension scheme. However, in McCloud, the ET considered some of the same key questions, yet reached opposite conclusions and held that the transitional provisions were discriminatory on the basis of age and that the Respondent had failed to objectively justify the provisions in that case. The ET in the present case considered the decision in McCloud and determined it was not bound by it, largely it seems, as it considered the firefighter case to be a social policy case, in which the state has a wide discretion in social policy matters.
The reform of public sector pension schemes is an important area for public sector employers and appeals may be lodged by the Government in relation to the McCloud case and the unions in relation to the present case.
Generally, any employer should keep in mind that if it is going to treat one age group differently to another then it must also be able evidence that the differential treatment is a proportionate means of achieving a legitimate aim if it wishes to be able to successfully justify such treatment.