All About Age: pensions claims firing up in the public sector

09 September 2015


What do firefighters, police officers and the judiciary have in common? Aside from their role as public servants protecting us all in a variety of circumstances, what they actually all have in common is collective complaints regarding age discrimination.

Judged by the judges

Almost 200 members of the judiciary are suing the Lord Chancellor and the Ministry of Justice for discrimination following changes to the judicial pension scheme.

From 1 April 2015 and no, this was no April fool, a judge born after 1 April 1957 will be entitled to a pension considerably smaller than the pension available to judges born before 2 April 1957.

Lawyers representing the judges maintain that those changes will result in a pension of less than two thirds of the net remuneration of an equivalent judge who is entitled to remain in the old final salary scheme. Among those younger judges there tend to be more women and more judges from ethnic minority backgrounds. So white, older male judges stand to gain.

The protection afforded to that group is said to be justified on the basis that they will have insufficient time to make good any shortfall. Not right say the lawyers representing the 200 - the claim has been issued in an employment tribunal and will no doubt be of key interest to those in the legal world and beyond.

Putting out fires

Similar challenges have been made by the Fire Brigades Union (FBU) in respect of changes to the 2015 Firefighters Pension Scheme.

Their claim is focused on firefighters aged between 55 and 60 who want to retire or have to retire but who do not qualify for an ill health pension.

Any pension drawn in such circumstances will be reduced, with the worst affected being those aged 55 or 56 say the FBU.

As the state pension age is due to rise to 68 and the structure of the new pension scheme is dependent on the state pension age the FBU calculates that the reduction for a firefighter currently aged 55 could be as much as 50.3% if the state pension age rises to 68. For those aged 56, they estimate the reduction would be 47.8%. This is in comparison with someone aged 57 where the reduction would be "only" 13.9%.

The FBU says this is unlawful age discrimination.

Despite the challenge, the FBU recognises the application of the ceiling applied by the Treasury in the wake of austerity measures and have noted that this would inevitably impact on how this issue is resolved. It will be interesting to see how this resolves and whether the employers defending their position successfully rely on objective justification arguments to show that the provision on early retirement is not unlawful.

Policing pensions

In an Employment Appeal Tribunal (EAT) decision delivered on 8 July 2015, the judge overturned an earlier decision that several police forces had committed age discrimination when using Rule "A19", a rule contained in the Police Pension Regulations. That rule allows forces to retire police officers on reaching 30 years' service with an officer being entitled to a pension of two thirds of pensionable pay if the policy authority determined that the retention of that officer was not in the general interest of efficiency.

A number of forces relied on Rule 19 to retire officers who had reached their two thirds pension entitlement, and the officers bought claims of age discrimination. The Employment Appeal Tribunal found that while discrimination potentially occurred when the rule was applied to retired police officers, the Tribunal had been wrong to find that the Force's actions were not justified.

The EAT looked at the fact that what was discriminatory was inherent in A19 itself, and that there was nothing inherently age discriminatory in the practice of the Forces independently of that within the terms of A19 itself. Appeals are being pursued by the Police Superintendent's Association so the final outcome of the police officers' complaint may yet be determined.

Interestingly, in a post-script to the judgment, Justice Langstaff ruminated on the fact that the claims could have been argued as direct, rather than indirect, age discrimination.

Public sector phenomenon?

While the cases outlined here tend to hit the headlines because of the public sector focus and the potential impact on the public purse, the judgments themselves are likely to have points on age discrimination that are of wider application and interest to employers and HR managers working in the private sector too.

What these cases continue to demonstrate is that objective justification - that is, showing that a measure was a proportionate means of achieving a legitimate aim - continues to be an element that comes under close scrutiny and challenge when it comes to cases of age discrimination. Employers who ignore this justification, or who fail to apply the appropriate level of due diligence and analysis to their policies from the outset, do so at their peril.

This article was originally published on Thomson Reuters.


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