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Published 8 February 2019
This case concerns the Fire Brigades Union (FBU) who successfully fought a dispute with the government over changes made to firefighters pensions in 2015. This long and bitter industrial dispute involving age discrimination means that firefighters will be put back onto the previous pension scheme.
Uniquely, this case also coincided with a similar such dispute between a group of judges and therefore both cases were ruled on together.
In the firefighters’ case, their pension scheme was substantially worsened in 2015 meaning that those older members could stay in the existing and better pension scheme, and the younger members had to transfer to a new and worse scheme, which caused huge financial losses to younger members. The FBU initiated over 6,000 Employment Tribunal claims alleging that the changes amounted to unlawful age discrimination. This was because under the new scheme, firefighters would not be able to retire before reaching the age of 60, compared to the former pension age of 55, and firefighters in England would see their pension reduced by 21.8%. This led to the analysis by the Court of Appeal of the proportionate means to achieving a legitimate aim, which was a key test that the judges had to consider.
With regards to the judges’ pension scheme, they had also been compulsorily transferred on 1 April 2015 to new pension schemes. This was as a result of the wider public sector pension reforms which directly impacted on the working and planning for these judges’ retirement. Such planning had been based on membership of their former scheme only for such plans to be disrupted once the new pension provisions by the government had been brought in. In relation to the judicial pension scheme, the Court of Appeal held that there were no errors of law in the original decision by the Employment Tribunal judge that had considered the case.
Direct age discrimination On appeal at the Court of Appeal it was however held that the government had failed, in relation to both cases, to show that the treatment was a proportionate means of achieving a legitimate aim. Essentially, the Court of Appeal considered that the government’s rationale for the transitional protections (i.e. the legitimacy) needed to be supported by evidence, and such evidence was not found to be before the tribunal.
Equal pay and race discrimination The Court of Appeal also concluded that these claims should succeed in both cases. Ultimately, as there was no objective justification to the age discrimination claims, there was no justification defence to the equal pay and indirect race discrimination claims, so the claims would succeed if a discrimination argument was established.
Ultimately, these social policy choices were deemed to be “errors of law” which had inevitably disadvantaged some individuals and thus the Court of Appeal’s unanimous judgment was in promoting a fairer outcome for both sets of professionals. We shall have to watch this space to see whether the government will seek to appeal the decision to the Supreme Court, particularly since these reforms formed part of a broader package of reforms to public sector pension schemes.
The Lord Chancellor & Anor v McCloud & Ors
London - Walbrook
+44 (0)20 7894 6564
+44 (0)20 7894 6583
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