The Employment Appeal Tribunal has held that a new pension scheme for firefighters was not age discriminatory.
Ms Sargeant and several other members of the Fire Brigades Union ("the firefighters") challenged their respective employing Fire and Rescue Authorities, as well as the relevant Government Departments, over the legitimacy of the transitional provisions included in the new Firefighters’ Pension Scheme 2015 (NFPS).
The issue for the firefighters was that the original Firefighters’ Pension Scheme (FPS) had several advantages over the NFPS. Benefits were more generous as they were calculated on the basis of final salary rather than career average earnings.
The transitional provisions of the NFPS created three groups of members with varied access to the generous benefits of the FPS. The different groups were determined by age of the individual members:
- active members of the FPS born on or before 1 April 1967 to remain in the scheme and receive full protection;
- active members born between 1 April 1967 and 2 April 1971 entitled to tapered protection under the transitional provisions, allowing them to remain in the FPS for an extra 53 days for each month by which their age on 1 April 2012 is over 41; and,
- active members of the FPS born after 1 April 1971 receive no transitional protection but are transferred to the NFPS from 1 April 2015.
Ms Sargeant and the other claimant firefighters were unprotected and not able to claim tapered protection due to what they perceived as age discrimination. However, the Tribunal ruled in favour of the authorities and the Government by stating that they had managed to discharge the burden by showing the firefighters’ treatment was a proportionate means of achieving a legitimate aim, which was to give effect to social policy objectives.
The EAT held that that the Tribunal had not erred in law in concluding that the authorities and the Government were pursuing legitimate aims. The transitional provisions of the NFPS were deemed as legitimate, despite the fact that they were based on the grounds of age.
However, the EAT did state that the Tribunal had erred in law when analysing proportionality. The EAT held that the Tribunal had correctly followed ECJ caselaw when applying the “margin of discretion” approach and considering whether the authorities and Government had been proportionate in their actions. But, the Tribunal had failed to also consider the use of domestic case law by not applying the proper level of scrutiny when analysing the objectives within the context of the particular business concerned.
The EAT allowed the appeal to succeed. The claims will be remitted back to the Employment Tribunal for consideration.
Ms R Sargeant and others v London Fire and Emergency Planning Authority and others, 29 January 2018, Case Number: UKEAT/0116/17/LA