The Employment Appeal Tribunal (EAT) has ruled in favour of firefighters who appealed an Employment Tribunal (ET) decision which found that a government move to justify changes to firefighters’ pension arrangements was not age discriminatory.
The case, Ms R Sargeant and others v London Fire and Emergency Planning Authority and others, regards firefighters who brought age discrimination claims following the introduction of the 2015 Firefighters’ Pension Scheme (FPS). On 1 April 2015, the FPS changed from a final salary arrangement to a career average revalued earnings (Care) scheme.
The firefighters’ argument centres around transitional provisions which permitted active members of the FPS who were 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 were entitled to tapered protection under the transitional provisions, which allowed them to remain in the FPS for an extra 53 days for each month by which their age on 1 April 2012 was over 41, while active members born after 1 April 1971 were not entitled to transitional provisions, but are transferred to the new pension scheme, unless they decide to opt out of pensionable service. The firefighters claimed that this discriminates against younger employees on the grounds of age, as the new pension arrangement is less advantageous than the previous provision.
During the tribunal proceedings, the government stated that it is legitimate to provide protection for members who are closer to retirement age.
The ET concluded that the introduction of the new pension scheme was a social policy aim of the government.
EAT has granted the firefighters’ appeal regarding equal pay and indirect discrimination on the basis that the ET did not apply proper scrutiny to the assertions of proportionality. Although the ET applied decisions made by the European Court of Justice (ECJ) and the Court of Justice of the European Union (CJEU) when making its decision, the EAT found that the ruling ET employment judge did not apply the level of scrutiny described in domestic case law
EAT agreed with the ET in respect that the government was pursuing legitimate aims in devising and implementing the transitional arrangements for the new pension scheme, even though these had a discriminatory impact on the grounds of age. The court emphasised that it was not the pension scheme changes that were being brought under question, but the transitional provisions.
The EAT will refer the case back to a tribunal.
Sir Alan Wilkie, who ruled over the proceedings, stated in the court documents: “In my judgement, the employment judge’s decision on the issue of legitimate aims was correct, did not contain any error of law so the appeals on those grounds fail. She did, however, err in law in her consideration of the question of whether the means were proportionate for achieving the legitimate aims and, accordingly, the appellants’ appeal must be upheld in that respect.”