Agenda item

The Director of Legal and Governance updated Members on an important matter relating to the McCloud/Sargeant ruling which was mentioned by the Deputy Director of Finance and Assets in the executive summary of his report on the MTFP. The upshot of the litigation brought by the FBU against the Government in 2016 was that the Court of Appeal on 20 December 2018 ruled that the transitional protections introduced with the new Firefighters Pension Scheme in 2015 were unlawfully discriminatory on the grounds of age.

There then followed an Employment Tribunal remedies hearing on 18 December 2019. The result of the Employment Tribunal hearing was the issuing of a Declaration that, pending the final determination of all of the remedy issues, those that brought claims in England and Wales were entitled to be treated as if they remained in ‘the 1992 firefighters’ Scheme’.

The Government announced on 25 March 2020, that it was developing proposals to address the unlawful age discrimination identified by the Court of Appeal in the 2015 reforms to the Firefighters’ pension scheme, and that it would take steps to remove this discrimination retrospectively. It confirmed that this would apply to pension scheme members regardless of whether individuals had made a claim.

The Government consulted on proposals to remove this discrimination in 2020 and the Authority responded to the consultation through its Director of Finance and Assets. On 4 February 2021, the Government issued its response to the consultation indicating its intention to proceed with a deferred choice underpin  to remove the discrimination for  scheme members employed by fire and rescue authorities during the so-called ‘remedy period’ by creating new legislation. The remedy period was defined as between 1 April 2015 and 31 March 2022. The remedy only applies to members who were in service on or before 31 March 2012 and continued to be in service on or after 1 April 2015.

The Director of Legal and Governance advised Members that whilst amended legislation is awaited, there were 15 firefighters employed by the Authority (ranging from firefighter, through to Principal Officers) who would become eligible to retire on ordinary pensions before 1 April 2022 and before the necessary legislation was enacted. These individuals had therefore been caught in limbo.

In the meantime, the Authority, together with all other  fire and rescue authorities, were respondents to the same claim issued against the Government by the FBU in 2016. The defence to that claim was coordinated by the LGA and was finally heard by the Employment Appeal Tribunal on 16 December 2020.

The defence being run by the LGA was that fire and rescue authorities were essentially ‘piggies in the middle’ and had no choice but to implement the pension changes which had been approved by Parliament, thereby relying on the statutory defence to age discrimination in Schedule 22 of the Equality Act 2010. The FBU argued that sections 61 and 62 of the Equality Act 2010 obliges employers to apply the pension regulations in a way that removes any discriminatory effect and therefore there was no defence available to fire and rescue authorities.

The Employment Appeal Tribunal handed down its judgment on 12 February 2021. The Employment Appeal Tribunal has ruled that Section 61 prohibits fire and rescue authorities from acting in a manner which discriminates on the grounds of age and the defence provided of Schedule 22 of the Equality Act 2010 is not available to the fire and rescue authorities. It ruled that under the proper interpretation of Section 62 of the Equality Act 2010 fire and rescue authorities had the power to pass a resolution to remove any discriminatory effects in the pension scheme.

It was therefore proposed that a meeting of the Executive Committee should be convened in order that it could give effect to the ruling of the Employment Appeal Tribunal by passing the necessary resolutions to remediate the position of those of its employees caught in limbo and uncertainty as to their pension entitlements before 1 April 2022. Once that Executive Committee meeting had been convened more detailed information would be able to be provided, including whether the LGA was likely to appeal the ruling and details of some of the technical and administrative challenges that would need to be overcome by colleagues here and at the pensions administrators to ensure that firefighters receive their proper entitlements. A resolution passed at Executive Committee meeting should also help crystallise some of the provisos and assumptions in the Authority’s retirement and succession planning.

The Chairman wanted to put on record her thanks on behalf of all Members to all officers and staff who had taken part in putting in place the Covid Vaccination Centres across Buckinghamshire and Milton Keynes, and also all the assistance offered to our partners by staff. The Chairman was extremely honoured to be Chairman of such a superb service that does so much for the residents in its community.

The Chief Fire Officer also wanted to put on record his thanks to  the Chief Executives and all staff at Buckinghamshire Council and Milton Keynes Council for their fantastic work in holding briefings three or four times a week and keeping all partners up to date.