Legal challenge

[Mr Godfrey]

Must try and look on the brightside and I often do, but this is a done deal.

[bill.advanced]

We all know it's discrimination, but there is not a snowballs chance in hell we are going to win
They're just too corrupt, and they don't care who knows it!

Oh mr Godfrey.
I remember well similar posts on the commutation thread, and also being told the same out and about, well we won and the final bill was £811 million.

You might be right then again maybe not let’s wait and see.

But similar cases such as sexual discrimination against women in the workplace have been upheld. I believe there is a case, the judges proved this with their case being upheld.

Ye look on the bright side mr Godfrey, but don’t go counting any chickens just yet.

[Mr Godfrey]

I hope I'm wrong bill I really do, but the implications of this far outweigh any other fire service pension claims.
It would be seen as catastrophic for the government as all other schemes would take them to court.
I think it's it's a fair bet the presiding judge will be well paid behind the scenes for the services he provides.

[bill.advanced]

I hope I'm wrong bill I really do, but the implications of this far outweigh any other fire service pension claims.
It would be seen as catastrophic for the government as all other schemes would take them to court.
I think it's it's a fair bet the presiding judge will be well paid behind the scenes for the services he provides.

Think PPI Mr Godfrey think PPI.

I know it’s a completely different case but it underlines if you have a case, you have a case

The total bill so far is £43 billion and counting, some say it will top £50 billion.

So keep yer pecker up and hope for the best, that’s all you can do.

[brumble49]

Appeal against age discrimination (Day 2)

Yesterday was the second day of the Employment Appeal Tribunal in the age discrimination claims made by more than 6,000 firefighters regarding the introduction of the 2015 Firefighters’ Pension Scheme.

As our legal team anticipated, the key question was around what flexibility the Government has when applying provisions which treat older and younger employees differently, on the grounds that it is pursuing an aim which is based on political or social policy grounds.

European legislation gives the EU governments the right to frame legislation dealing with age discrimination on a basis that treats different age groups differently if there are legitimate social or labour market reasons for doing so (such as the need to free up employment or promotion opportunities). But our QC made the point that the Government must show that it had such a reason in mind and also that, looking at the facts of the particular case the Government was pursuing a legitimate aim, and that what it did was a proportionate way of doing so. The Government’s lawyers are hiding behind European law, saying that pursuing some sort of social policy is enough.

More than that, as our QC pointed out, if there is a social (or political) objective being pursued the Government has to say what it is, and has to show that what it did was a legitimate way of achieving it. The Government’s case is that it was pursuing a wider political goal of reducing pension costs across the public sector – but why does that mean you have to cut the benefits of younger members only? The Government’s answer to that is, as our QC pointed out, no answer at all. To say it is a ‘political’ decision begs the question: why? The Government has never answered that question – if there are limited resources, why spend them on members who are least affected by the reform process because they are going to retire in the near future anyway?

We also got into the question of what exactly the Government was trying to achieve. That has been a constantly moving target. It started off saying that younger members have more time to adjust to the new scheme. But if you look at that, older members have less need to adjust because they are least affected. The younger you are, the worse the consequences. A firefighter who has a week to go until reaching retirement age loses only a week of the better FPS benefits.

So the Government shifted its ground, not in the reform process but as a response to these legal proceedings. Now it says that the aim was to protect members who were closer to retirement because they had already made retirement plans – it says it has a moral duty to protect the expectations of older members, and the reform process was not about saving money. The answer to that is that it has a moral duty to protect the expectations of all members, not just older members, who signed up in the expectation that they would be able to retire at the age of 50 –55.

Having pointed out that the Government has never explained what it was trying to achieve, we then got into the question of proportionality. If the Government had a legitimate aim (and we say it didn’t), was its approach of introducing a transitional arrangement an ‘appropriate’ and ‘reasonably necessary’ way of achieving it (which is the legal test)? Here we have a difference between the judges’ case and ours. In the judges’ case, the Employment Tribunal correctly examined the question of balancing the Government’s perceived needs against the damage it was doing and concluded that the balance was unfair. In our case, the balancing exercise was not carried out at all. We will get into that in more detail on Wednesday.

We finished the day with the submissions of the QC who represents the ‘senior’ judges who are pursuing the claim. They are five High Court judges, and one judge who has just been promoted to the Court of Appeal. He made the point that judges are in a uniquely difficult position because they move into a different tax regime as a result of having to transfer, and they were made specific promises which have not been honoured. These are fair points, and place some clear water between our case and theirs. But they support everything we have to say how the law works in this area. They will finish off their case tomorrow.

What next?
As we reported, the Government’s case on day one came down to saying that it has a wide leeway in deciding what political or social policies it will apply. That starts to look a bit threadbare when you ask whether it actually looked at the consequences of what it was doing, and how it squares that with its obligations as an employer. It has no more right to discriminate, by legislation or otherwise, than any other employer.

Our judge is concerned that he is being asked to grapple with big political decisions taken at cabinet level. Our answer is that big political decisions must still be justified, in UK as well as European law, if the consequences are discriminatory. Legally that is undoubtedly right. But we must recognise that the decision he has to make has huge consequences, and he realises that too.

On Wednesday the Government gets a chance to explain why it thinks our legal analysis is wrong. Then we get into the specific defects of the decision made by the Employment Tribunal in our case (and which the judges’ Employment Tribunal got right). We will update you again after tomorrow.

https://www.fbu.org.uk/blog/pensions-app...ZY.twitter

[bill.advanced]

legislation gives the EU governments the right to frame legislation dealing with age discrimination on a basis that treats different age groups differently if there are legitimate social or labour market reasons for doing so (such as the need to free up employment or promotion opportunities)

Above we have the crux of this whole issue, is the government in breech of the ADA or not.
As I stated in my previous post it is possible to form policies that are age discriminatory, but still be within the ADA.
But the question here is was the government acting in a manner that is both age discriminatory as they have admitted, and in a manner that falls out-with or allowed within the ADA.

This is the reason why this could not be looked at by the pension ombudsman, his remit is purely figurative and the PO can only look at rules or guidelines set within any given pension scheme. The PO is neither equipped or has the power to make morale judgements regarding pension issues. In our commutation case no such moral issues were involved. Our case revolved around dates, rules, and clearly defined issues.

What we did see here was a clear clear water between us and the judges, unfortunately that may weaken our case.
But I remain hopeful that a positive outcome is possible here.

[jellytot]

I have been following the Twitter feed that soco posted up.

Can anyone explain in layman's terms what has happened. Do we now need to wait for the judgement to be made before the guy representing the fire service gets to figh our case?

Confused with what's happened today.

[Lou1z]

Pensions age discrimination appeal DAY 4 (of 4):
Ok, it’s the final day of our Tribunal. So far The government has accepted it used age discrimination to apply the protection. They claim it was a ‘social policy’ by protecting the older members who were closer to retirement, and it was their ‘moral obligation’ to do so. By claiming it was social policy it allows them wider freedom to use age discrimination. For example, a social policy to look after vulnerable members of society is also discrimination, but we accept it’s ok.
In response, we have said that it wasn’t social policy, the government were acting as our employer and as such they need to abide by the law just like the private sector does. Also, the ‘moral obligation’ to protect the older members is flawed, as it was pointed out that morally they should be protecting those most affected by the changes- I.e the younger members who were going to face the biggest losses! It was also pointed out that in Lord Huttons report (which is what the government used to make these reforms) he didn’t suggest any form of protection. In fact he he said it would be unlawful if they did!
The judge in our original tribunal agreed that the government was using social policy, whilst the judge on the judges case didn’t. Hence we had 2 different results.
I’ll try to keep you informed as the day progresses.

An interesting point came out this morning. Fire authorities act as trustees for the pension scheme, and therefore must abide by the equalities act 2010 which states they cannot break age discrimination law. However by following the governments instructions to protect older members they might have done. So we need to wait for the result of our case to find out if the government was in fact unlawful, and as a result Fire Authorities were too, therefore that separate part will be dealt with at a later date.

[brumble49]

Appeal against age discrimination (Day 3)

Day three of our appeal saw us involved in more complex legal arguments. The QC who represents the senior judges started the day’s proceedings. Having outlined previously why the judges’ case is so different from ours, he now went on to outline how the law applies and why it applies in the same way to us as well as the judges.

On day one it became clear the major battle is going to be whether the test for justifying direct age discrimination was going to be based on European law, UK law or both. The judges’ QC went through the relevant section of the Equality Act: it doesn’t say that it doesn’t apply to the Government when it makes legislation such as the pensions regulations, it doesn’t say that it doesn’t apply when the government is the employer, and it doesn’t say that the Government, any more than any other employer, can decide that it is legitimate to discriminate for social policy or political reasons.

The UK Government must obey UK law. The Act might be intended to give effect to European law, but there is no need to say it only gives effect to European law if, as the Government is arguing, it gives the Government more leeway when legislating.

There is also a bizarre side effect if the Government is right. Their case is that they have a discretion when deciding what scope to permit direct age discrimination; but even on their case this leeway doesn’t apply to indirect age discrimination. It can’t be right that it is easier for the Government to discriminate directly on the grounds of age than it can be to put barriers in place which have the indirect effect that older or younger employees suffer a disadvantage.

Finally he referred to a UK case involving the Civil Service Compensation Scheme where the Court of Appeal applied the ordinary Equality Act test to a statutory scheme similar to the FPS. As a higher court decision, our judge must either follow that decision or explain why it doesn’t cover the same ground.

He finished by pointing out that the Hutton Commission had said that transitional provisions would be age discriminatory, and the Treasury civil servants had specifically warned the Government not to enact them. Having been warned, the Government couldn’t be surprised to discover that these proceedings had been taken.

The Government then had an opportunity to respond on the legal analysis. They returned to their argument about the correct test, and said that the Equality Act can’t be read literally because it was intended to give effect to European law. And it said that it had a wide discretion, especially where the discrimination derives from political considerations.

Our QC then looked at the specific defects in the Employment Tribunal decision in our case. Going through the decision paragraph by paragraph, he showed that there was no evidence to demonstrate why the Government thought the Hutton Commission was wrong, why it was right to discriminate in favour of the age group which stood to lose least, why it said that the case was parallel to the way in which the State pension age has been increased. To explain the last of these points: the Employment Tribunal judge found that the decision to allow ten years’ protection was made to match the ten years’ warning that it gave that the State pension age would increase. But the reasons behind the State pension age decision were about the savings that any citizen would have to make to prepare for a later retirement.

The real point, however, is that if the Government says what it did is justifiable, it is up to the Government to explain why. It didn’t do that. The Employment Tribunal didn’t look at what the Government’s reasons were, subject them to any real scrutiny and then balance the Government’s ‘need’ to reduce pensions against the damage that the reduction would do to individual members. That is the Tribunal’s job – to conduct the balancing exercise. Our Employment Tribunal judge said that, because the decision was based on political considerations it had a wide margin of discretion and did not have to provide hard, concrete evidence as to why it decided to do what it did and what that was a proportionate and reasonably necessary means to achieve its objectives.

Moreover, if the decision was legitimate it was because it was politically important: does that mean that if the decision was made at cabinet level, less judicial scrutiny is required. If a decision has a big impact, either on particular individuals or on a lot of people, the court should examine even more carefully the Government’s reasoning.

The impact in our case is startling. One of our test cases is a competent firefighter who would have to invest between £16,000 and £19,000 every year to make up his losses. Firefighters who transfer to the 2015 Scheme either have to retire at their FPS pension age to get the full value of their FPS benefits, in which case their 2015 Scheme benefits are reduced; or wait until age 60 and give up 10 years’ worth of pension. They are trapped. And yet the Government Actuary’s own assumption is that anyone with more than 16 years’ FPS membership will retire at their FPS pension age and have their 2015 Scheme pension cut.

Today (Thursday) we have dealt with the sex and race discrimination claims and following this is the summing up. A final report will be produced tomorrow.

https://www.fbu.org.uk/blog/pensions-app...tion-day-3

[bill.advanced]

Hi jellytot I h

I have been following the Twitter feed that soco posted up.

Can anyone explain in layman's terms what has happened. Do we now need to wait for the judgement to be made before the guy representing the fire service gets to figh our case?

Confused with what's happened today.

Not read through today’s report yet jellytot.
But I reckon it will be weeks before you get a decision.

Basicly the QC is arguing that the employers have breeched the age discrimination act by treating younger members differently. The judges have to look at the moral and legal implications before reviewing and deciding.