Dear Brother / Sister
This circular contains information and advice to FBU members who believe there has been an error in the calculation of the Compensation Payment (offer) proposed to him/her by their Fire and Rescue Authority, as part of the settlement in respect of the successful Fire Brigades Union legal challenge to gain part-time status for Retained Firefighters.
If you are not an FBU member, then you need not read on. If you are a member of the RFU, you should contact your officials on how to proceed. If you are not a member of either the RFU or FBU, then you are more than welcome to contact our officials at the Regional or Brigade offices local to you, who will be able to advise you on how to join the FBU. The contact details can be found on the FBU website www.fbu.org.uk (Tab: "About us"> "FBU Local contacts".)
Rejecting The Offer
Members who have received a letter containing details of their individual offer, or have accessed the dedicated website (http://www.retainedfirefighterclaims.org.uk) to view their individual offer, and who believe the offer is wrong, should in all cases contact the fire rescue service with whom they currently/most recently worked as a retained firefighter.
Such members should supply to the fire and rescue service as many details as they can to assist the FRS. Members should also ensure that any verbal communication is immediately followed up in writing. The key information that should be supplied to fire and rescue services in writing is:-
For All
- Your surname, first and other forenames
- FBU Membership number (if known)
- National Insurance number
- Current address, including post code
- Previous address (if applicable - and certainly if you are claiming in respect of service with a different FRA)
- Contact telephone number (preferably one with an answer-phone)
- Period of service with current FRS
- Substantive Role (rank)
- Station you work/worked at
Additionally, If Your Claim Is In Respect Of Sick Leave (A Continuous Period Of 9 Months Or More)
- Dates of sick leave
- Cause of sick leave
- Name of more senior officers/ managers that would be able to verify
If Your Claim Is In Respect Of An Incorrect Calculation
- Level of cover
- Date of joining service
- Date of leaving service (if applicable)
If Your Claim Is In Respect Of Previous Employment That Has Not Been Accounted For
- Name of any other FRS you worked for in the period 1 July 2000 - 30 June 2010 on a retained contract
- Last home address when working for another FRS
- Period of that service with another FRS - the more accurate the better
- Rank/role held in that period of service with another FRS
- Level of cover provided in that period of service with another FRS
The fire and rescue service should both acknowledge the communication and confirm whether they agree that the original offer was incorrect or not. Should, for any reason, a member not hear back from the fire and rescue service he/she should, on a precautionary basis, complete the special circumstances form and submit it along with supporting evidence in accordance with the advice, guidance and instructions that accompany the form.
Members who have contacted their and fire rescue service as above, and who do not receive an agreement from the fire and rescue service that the original claim is incorrect, must complete the €œNon Standard Circumstances€ form and submit it, and must supply supporting evidence fully in accordance with the advice, guidance and instructions that accompany the form. You must not delay.
The Agreement On Completing The Non-Standard Circumstances Form - Advice On Completing The Non-Standard Circumstances Form
The settlement agreement between the FBU and the employers states that there are three grounds on which an employee may dispute the offer:-
1. Where an individual Eligible Employee has had a continuous period of sickness absence within the Reference Period (excluding any period of paid sickness absence for illness or injury arising out of authorised duty pursuant to paragraph 11 of the 6th edition of the Grey Book) which amounts to nine months or more; and/or
If an individual claims to have a period of continuous sickness absence of nine months during the period from 1 July 2000 to 30 June 2010 (€œthe Reference Period€) (excluding any period of paid sickness absence for illness or injury arising out of authorised duty pursuant to Section 5, part B, paragraph 11 of the 6th edition of the Grey Book), then she or he will need to provide the appropriate supporting documentation, confirming the continuous period of sickness absence in the form of either a report (or reports) from a
medical practitioner, medical records evidencing the same, or Doctor's Statements under the Statutory Sick Pay (Medical Evidence) Regulations 1985 covering the relevant periods. That supporting documentation should be sent to Popularis with the completed €œNon-Standard Circumstances and Previous Employment€ form attached to this letter. Popularis will then forward this information to the FBU/Thompsons (as appropriate). The FBU will then need to share that information with the employing FRA in order to process the claim.
Any individual who claims that Non-Standard Circumstances or Previous Employment apply to them, and who does not therefore wish to accept the payment offered in full and final settlement of their claim, should complete and return the attached €œNon-Standard Circumstances and Previous Employment€ form, showing clearly why she or he contends that Non-Standard Circumstances apply to their claim.
2.Where the individual is able to show that the way in which the Compensation Payment has been applied to the individual is incorrect; and/or
If an individual believes the information used to applythe Compensation Payment is incorrect, they should first seek to agree the information/seek clarification from their FRA as to the correct figures before using the Non-Standard Circumstances process. If agreement or clarification with the FRA cannot be achieved, the individual should complete and return the €œNon-Standard Circumstances and Previous Employment€ form.
Any individual who claims that €œNon-Standard Circumstances or Previous Employment€ applies to them, and who does not therefore wish to accept the payment offered in full and final settlement of their claim, should complete and return the attached €œNon-Standard Circumstances and Previous Employment€ form, showing clearly why she or he contends that Non-Standard Circumstances apply to their claim.
3. If an Eligible Employee was employed by more than one FRA during the Reference Period and this has not been properly taken in to account in the original calculation.
Any individual who claims that €œNon-Standard Circumstances or Previous Employment€ applies to them, and who does not therefore wish to accept the payment offered in full and final settlement of their claim, should complete and return the attached €œNon-Standard Circumstances and Previous Employment€ form, showing clearly why she or he contends that Non-Standard Circumstances apply to their claim.
If an Eligible Employee was employed by more than one FRA on a retained duty system during the Reference Period, the parties agree that, subject to either the current employing FRA providing information in accordance with clause 15 below, or the Eligible Employee providing documentary proof of his/her service with another FRA during the Reference Period, the Eligible Employee's current employing FRA (or most recent employing FRA) will make a Compensation Payment which reflects all service under a retained duty system within the Reference Period.
Advice On Completing The Non-Standard Circumstances Form
- I was on sick leave for a continuous period over 9 months in the reference period €“ should I take the offer or put in a Non Standard Circumstances claim on the basis of my sick leave?It isn't possible to give you a definitive answer but it is possible to give you the information on which to make your decision.
As you know the question for you to answer is:-
€œAm I going to be able to make a claim that amounts to more than the offer?€For you be able to make the claim you need to be able to evidence it. This is because an FRS needs to be able to justify its payment. More importantly, in some ways, if the FRS says €œwe don't accept that Mr/Mrs/Miss/Ms X should get more cash€, then the leverage we would have with an employer is €œit's well-evidenced, if we have to take Mr/Mrs/Miss/Ms X's claim to the ET as an individual case then you will lose€. So:-
I. It's important from the outset that a special circumstances claim is sufficiently evidenced. Evidence requires €œrecords€. If it isn't, then it won't be possible to progress it.
II. To make a claim for sick pay under the agreement, the member must have had a continuous period of sick for 9 months or more - do you qualify according to this criterion?
III. These records would take the form of doctor's sick certificates that were submitted to the FRS, acknowledgements from the FRS, letters that the FRS may have written to you, in other words, to show:-
- written tangible evidence to show that you were sick
- written tangible evidence to show that the FRS was notified
- written tangible evidence to show the amount of sick pay paid by the employer for the period (from pay slips)
- written tangible evidence to show the amount of sick pay that you should have got (this will require pay slips)Do you have these records so that you qualify on this criterion?
IV. Sick Pay for retained members:-
- The sick pay provisions for the period 1 July 2000 €“ 25 August 2004 are contained in the 5th edition of the Grey Book
- The sick pay provisions for the period 26 August 2004 - 1 July 2010 are contained in 6th edition promulgated on 26/8/04 via NJC Circular 05/04.To all intents and purposes both versions said the same thing:-
- Where an employee on the retained duty system is on authorised sick leave €˜full pay' means the annual retainer and up to four weekly payments in a calendar year for routine training, development and maintenance sessions, subject to the production of a doctor's statement.
- Where an employee on the retained duty system (or a volunteer carrying out operational firefighting duties) is on authorised sick leave as a result of an illness or injury arising out of authorised duty, €˜full pay' means the employee's average weekly remuneration in the previous twelve weeks, taking all payments into account. Where the employee can provide satisfactory evidence that, as a direct result of the illness or injury, he or she is suffering a financial loss in respect of his or her usual occupation, €˜full pay' means the amount of the actual loss (including his or her average weekly remuneration from the fire and rescue authority in the previous twelve weeks) subject to the maximum basic weekly rate of an Area Manager.
- For the purpose of the paragraph above, €˜authorised duty' includes occasions on which the employee (or volunteer) is responding directly and promptly to an emergency call. It shall not include travelling to the station for any other purpose. Where the fire and rescue authority is satisfied that the employee (or volunteer) has been injured as a result of returning directly to his or her home or work immediately after attending the station in response to an emergency call, the authority may treat that journey as authorised duty. Any decision to regard such a journey as authorised duty shall concern only the question of calculating entitlement to sick pay. It shall not be regarded as determining whether the employee (or volunteer) was on duty for any other purpose.
- In no circumstances shall sick pay be calculated in such a way that, when added to SSP and IB receivable, it exceeds normal pay. In calculating €˜half pay' any SSP or IB receivable shall be disregarded except where the resulting amount, when added to SSP or IB, exceeds normal pay.
- Widows and married women exercising their right to be excepted from the payment of National Insurance Contributions shall be deemed to be insured in their own right for all National Insurance benefits. (5th edition only)
- An employee shall declare to the fire and rescue authority any entitlement to benefit related to his or her sickness
V. What a member received in sick pay (and state benefits in relation to the sick leave) needs to be compared against what a retained firefighter should have been paid. That has been determined and is contained in the changes to the Grey Book (arising as an outcome of the FBU's success in the courts.)
These provisions are effective from 1 July 2010 and were promulgated in NJC Circular 04/11. These are those new provisions:-
- Where an employee on the retained duty system is on authorised sick leave €˜full pay' shall be calculated on a daily basis. Employees shall receive 1/7th of their average weekly wage per day. Weekly wage shall have the meaning given to it in Appendix C paragraph C.
- Where an employee on the retained duty system (or a volunteer carrying out operational firefighting duties) is on authorised sick leave as a result of an illness or injury arising out of authorised duty and can provide satisfactory evidence that, as a direct result of the illness or injury, he or she is suffering a financial loss in respect of his or her usual occupation, €˜full pay' means the amount of the actual loss (including his or her average weekly wage as defined in Appendix C, paragraph C) subject to the maximum basic weekly rate of an Area Manager.
- For employees on the retained duty system (or volunteers) and for the purposes of the paragraph above, €˜authorised duty' includes occasions on which the employee (or volunteer) is responding directly and promptly to an emergency call. It shall not include travelling to the station for any other purpose. Where the fire and rescue authority is satisfied that the employee (or volunteer) has been injured as a result of returning directly to his or her home or work immediately after attending the station in response to an emergency call the authority may treat the journey as authorised duty. Any decision to regard such a journey as authorised duty shall concern only the question of calculating entitlement to sick pay. It shall not be regarded as determining whether the employee (or volunteer) was on duty for any other purpose.€
- In no circumstances shall sick pay be calculated in such a way that, when added to SSP and IB receivable, it exceeds normal pay. In calculating €˜half pay' any SSP or IB receivable shall be disregarded except where the resulting amount, when added to SSP or IB, exceeds normal pay.
- An employee shall declare to the fire and rescue authority any entitlement to benefit related to his or her sickness.
- Appendix C paragraph C: For an employee working on the retained duty system where the €œaverage weekly wage€ (or €œremuneration€) applies this shall mean the employee's average weekly wage or remuneration in the previous 12 weeks excluding any week in which she or he has been on sick leave or received no pay. Where there has been an increase in the rates of fees or payments during that 12 week reference period, the new rate shall be used to make the calculation as if it applied throughout the reference period. Further, given that the annual retainer will continue to be paid during periods of paid sick leave or other paid authorised absences (subject to any reduction to half payment in accordance with Section 5, Part B, paragraph 10), payment of the retainer should be disregarded when calculating average weekly wage.
VI. So essentially, the process you need to go through is this:-
- Was I off sick for 9 months or more? If €œyes€ then proceed to 6b, if €œno€ then stop now.
- Do I have records regarding my sickness and payments in my possession? If €œyes€ proceed to 6c, if €œno2 then stop now.
- By using your pay slips does:-the payment which should have been paid (see section 5 above)
minus
the payment which you did receive
= more or less than your offer?
2. I believe the Compensation Payment (offer) proposed by my fire rescue service is incorrect - should I take the offer or put in a Non Standard Circumstances claim?
It isn't possible to give you a definitive answer, but it is possible to give you the information on which to make your decision.
For you be able to make the claim, you need to be able to evidence it. This is because an FRS needs to be able to justify its payment. More importantly, in some ways, if the FRS says €œwe don't accept that Mr/Mrs/Miss/Ms X should get more cash€, then the leverage we would have with an employer is €œit's well-evidenced, if we have to take Mr/Mrs/Miss/Ms X's claim to the ET as an individual case then you will lose€. So:-
I. It's important from the outset that a special circumstances claim is sufficiently evidenced. Evidence requires €œrecords€. If it isn't, then it won't be possible to progress it.
II. To make a claim that the payment has been incorrectly calculated by the FRS under the agreement, the member must be able to evidence the claim with records or similar evidence which he/she is absolutely certain that he/she can provide.
III. The calculation for a period of service is based upon the following:-
The Compensation Payments:-
Firefighter £750
Leading Firefighter/Crew Manager £778
Sub-officer and Station Officer/Watch Managers £806
The Compensation Payment shall be based on the individual Eligible Employee's role as at 30 June 2010 (or, for Eligible Employees who were no longer employed as at that date, their rank/role held on the date of leaving service). The Compensation Payment shall also be applied pro-rata, against the Reference Period, to each Eligible Employee's aggregated length of service based on total complete weeks. If the Eligible Employee performed less than full cover as at 30 June 2010 (or the date of leaving service, if earlier) the Compensation Payment shall be adjusted on a pro-rata basis to take account ofthe percentage of cover provided by each Eligible Employee on30 June 2010 (or if they left prior to 30 June 2010, the level of cover they provided on their date of leaving service), but to not less than 75%.
The minimum total Compensation Payment to an Eligible Employee shall be not less than £150.
IV. Your "offer" letter will show the following elements which would have been used to calculate the Compensation Payment:-
i. the length of service (in years and complete weeks) on the relevant retained contract in the reference period
ii. your most recent rank/role in the reference period
iii. your most recent €œlevel of cover€ in reference period
V. The records/other evidence to show that the payment has been incorrectly calculated for one or more of the relevant element(s) of (i)-(iii) above would take the form of:-
- written tangible evidence to show your length of service. Examples are your contract; letters confirming your employment; letters or memos during service which show your start date (or length of service up to a particular date); letters or memos from senior officers when you exited the service; letters or memos in connection with a J4 (injury) pension.
- and/or the start of a long list of colleagues, who would, if required, be able to testify when you joined and/or when you left.
- written tangible evidence to show that you held higher rank/role. Examples are pay slips; letters or memos confirming promotion; copies of letters or memos sent by senior officers to you indicating your rank/role.
- and/or the start of a long list of colleagues, who would, if required, be able to testify that you held the higher rank/role
- written tangible evidence to show your level of cover. Examples are your contract; letters or memos received during of service from senior officers which make reference to your level of cover.
- and/or the start of a long list of colleagues, who would, if required, be able to testify to the level of cover you provided.
Do you have these records/ €œwitnesses€ so that you can show that you qualify on one or more of these criteria?
VI. If you believe you have substantive evidence that stands up to scrutiny then this will be a key factor in your decision.
3. My offer doesn't seem to contain all the periods of service on a retained contract that I performed for other fire rescue services during the reference period - should I take the offer or put in a Non Standard Circumstances claim?
It isn't possible to give you a definitive answer but it is possible to give you the information on which to make your decision.
For you be able to make the claim you need to be able to evidence it. This is because an FRS needs to be able to justify its payment. More importantly, in some ways if the FRS says €œwe don't accept that Mr/Mrs/Miss/Ms X should get more cash€, then the leverage we would have with an employer is €œit's well-evidenced, if we have to take Mr/Mrs/Miss/Ms X's claim to the ET as an individual case then you will lose€. So:-
I. It's important from the outset that a special circumstances claim is sufficiently evidenced. Evidence requires €œrecords€. If it isn't, then it won't be possible to progress it.
II. To make a claim that the payment has been incorrectly calculated by the FRS under the agreement, the member must be able to evidence the claim with records of similar evidence which he/she is absolutely certain that he/she can provide.
III. The calculation for a period of service is based upon the following:-
The Compensation Payments:-
Firefighter £750
Leading Firefighter/Crew Manager £778
Sub-officer and Station Officer/Watch Managers £806
The Compensation Payment shall be based on the individual Eligible Employee's role as at 30 June 2010 (or, for Eligible Employees who were no longer employed as at that date, their rank/role held on the date of leaving service). The Compensation Payment shall also be applied pro-rata, against the Reference Period, to each Eligible Employee's aggregated length of service based on total complete weeks. If the Eligible Employee performed less than full cover as at 30 June 2010 (or the date of leaving service, if earlier) the Compensation Payment shall be adjusted on a pro-rata basis to take account ofthe percentage of cover provided by each Eligible Employee on30 June 2010 (or if they left prior to 30 June 2010 the level of cover they provided on their date of leaving service), but to not less than 75%.
The minimum total Compensation Payment to an Eligible Employee shall be not less than £150.
IV. Your "offer" letter will show the following elements which would have been used to calculate the Compensation Payment with your most recent employer:
i. the length of service (in years and complete weeks) on the relevant retained contract in the reference period
ii. your most recent rank/role in the reference period
iii. your most recent €œlevel of cover€ in reference period
In addition, it should show €œthe length of service on a retained duty system with another FRS within the reference period€.
This should be aggregated into the compensation payment shown.
V. If it isn't, the records/other evidence to show that the payment has been incorrectly calculated for one or more of the relevant element(s) of (i)-(iii) above would take the form of:-
- written tangible evidence to show your length of service. Examples are your contract; letters confirming your employment; letters or memos during of service which show your start date (or length of service up to a particular date); letters or memos from senior officers when you exited the service; letters or memos in connection with a J4 (injury) pension.
- and/or the start of a long list colleagues, who would, if required, be able to testify when you joined and/or when you left.
- written tangible evidence to show that you held higher rank/role. Examples are pay slips; letters or memos confirming promotion; copies of letters or memos sent by senior officers to you indicating your rank/role.
- and/or the start of a long list of colleagues, who would, if required, be able to testify that you held the higher rank/role.
- written tangible evidence to show your level of cover. Examples are your contract; letters or memos received during of service from senior officers which make reference to your level of cover.
- and/or the start of a long list colleagues, who would, if required, be able to testify to the level of cover you provided.
Do you have these records/€œwitnesses€ so that you can show that you qualify on one or more of these criteria?
VI. If you believe you have substantive evidence that stands up to scrutiny then this will be a key factor in your decision.
VII. Bear in mind at all times that you will not be able to receive more than the amounts shown below (based upon your last held rank/role in the reference period:-
Firefighter £750
Leading Firefighter/Crew Manager £778
Sub-officer and Station Officer/Watch Managers £806
I hope this letter assists you. The key points are:-
- In the first instance contact your FRS and give them as much information as you can.
- Make sure your claim and the FRS response is in writing
- In any event use the non-standard circumstances form if you do not get a satisfactory response in writing early enough.
- This can only be done in hard copy not on the website.
- Make sure that you do not miss any deadlines.
- Make sure that you are able to evidence your claim and make sure you include that evidence with your Non-Standard Circumstances form, else it will be rejected.
Best wishes.
Yours fraternally
Andy Dark
Assistant General Secretary
2012HOCO171AD
