Dear Brother/Sister
O’Brien v Ministry of Justice outcome update
Background
The Fire Brigades Union brought claims for retained firefighters under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the PTWR”) as long ago as 2000. One of the claims related to their exclusion from the Firefighters’ Pension Scheme (“the FPS”), which was then provided solely to full-time firefighters.
Retained firefighters were allowed to join the New Firefighters’ Pension Scheme (“the NFPS”) from 6th April 2006. Our case was that retained firefighters who joined the fire and rescue service after the date when the PTWR came into effect in 2000 should have been permitted to join the FPS. The government accepted that, but finding a way to achieve it proved difficult.
Eventually, the Secretary of State amended the NFPS to give eligible retained firefighters, employed between 1st July 2000 and 5th April 2006 inclusive, retrospective access to the NFPS as “special members” (special firefighter members, special deferred members or special pensioner members). Special members are entitled to pension benefits that are broadly the same as the benefits provided by the FPS. This retrospective access was given following an amendment Order made in 2014.
The employing Fire and Rescue Authorities (“FRAs”) then carried out an options exercise (or were meant to) which opened on 1 April 2014 and closed on 30 September 2015 in England, Scotland and Northern Ireland, and 29 February 2016 in Wales (“the first options exercise”), which was intended to allow existing and former retained firefighters with service between 1st July 2000 and 5th April 2006 an opportunity to join the NFPS as special members, subject to the payment of appropriate contributions, in respect of their service during that period. The intention was to allow them to take up special membership even if they had already retired or left the service.
O’Brien
Following a 13 year fight for a pension, Dermod O’Brien (a part-time judge) succeeded 7 November 2018 in his second visit to the Court of Justice of the European Union (CJEU) that he should have his pension backdated to include his service prior to the introduction of the PTWR on 1st July 2000.
The case concerned discrimination against part-time judges in the calculation of pensions. The issue was whether periods of service as a part-time judge prior to the Part Time Workers Directive (97/81/EC) coming into effect should be taken into account in calculating the amount of pension to be paid upon retirement.
Mr O’Brien started his part-time work on 1 March 1978 and was in post until 31 March 2005, but his pension was only based on service from 7 April 2000, which was when the UK was required to transpose the Part Time Workers Directive into domestic law.
The CJEU concluded that part-time work undertaken before the deadline for transposing the Part Time Workers Directive on 7 April 2000 must be taken into account for the purposes of calculating a retirement pension.
Current Position
There is a direct read-across from the O’Brien case to the claims which the FBU initiated for retained firefighters. The aspects of the 2000 claims which relate to pensions have never been discontinued, and should it be necessary to do so they could be revived.
The arrangements made in 2014 - 2015 must be revisited for three reasons:
- The eligibility period is slightly wrong. The 2014 Order allowed retained firefighters who joined the fire and rescue service on or after 1 July 2000 (but before 6 April 2006) to join the NFPS as special members. The Part Time Workers Directive should have been brought into effect by 7 April 2000, not 1 July 2000. The NFPS will have to be amended again to cater for members who left between 7 April and 1 July 2000. The government appears to accept that.
- Much more importantly, members who were already employed in the fire and rescue service on 7 April 2000 should be permitted to join the NFPS as special members for all of their service right back to the date when their employment as a retained firefighter commenced (provided that they did not have a break in their service before 7 April 2000). That follows from the O’Brien case. They would have to pay arrears of contributions.
- Some FRAs did not deal with the first options exercise competently (at least one FRA did not deal with it at all). The government accepts that anyone who was not given a reasonable opportunity to take part in the first options exercise should be given another go.
The result is that the government proposes to run a second options exercise. Precisely when it will open and close is not yet known. The NFPS can only be amended by legislation, and the time that takes will depend on carrying out a consultation exercise, and then the parliamentary timetable.
The Fire Brigades Union and our legal team are in advanced negotiations with the government and the FRAs about how the second options exercise will be conducted, and we will provide a further update as soon as we are able to do so.
What this means
Retained firefighters who joined on or after 6 April 2006 did so on the “ordinary” terms of the NFPS. We cannot change that and argue that they too should be given access to the special membership terms. There is no legal basis for that argument.
Members who joined before 1 July 2000 will be given a chance to take part in the second options exercise, and pay additional contributions to buy special membership terms from the date when they joined the fire and rescue service. The precise detail of how this will work has yet to be finalised. In particular, the effect of a break in service before 7 April 2000 has yet to be agreed.
This options exercise will be open to members who are still in the service, who have left it, or who have retired.
Members who joined on or after 1 July 2000 (but before 6 April 2006) and who were not given a proper opportunity to take part in the last options exercise will be given another opportunity to join the NFPS as special members. Again, this options exercise will be open to members who are still in the service, who have left it, or who have retired.
We are not able to advise members whether or not they should pay the additional contributions to backdate their special membership (we are not able to provide financial advice), but there are two points to bear in mind. First, if the pattern of the first options exercise is followed, current employees and former employees will be given the opportunity to spread their additional contributions over a period of years (10 years was allowed last time). Secondly, members who join as pensioners will be entitled to arrears of pension and an additional lump sum, and can pay their contributions out of the arrears and lump sum.
We will keep you informed of the negotiations as they progress. We are hopeful that they will be concluded within the next few months. Members requiring further information should contact Brigade Officials in the first instance.
Best wishes.
Yours in unity,
Mark Rowe
National Officer
