RETAINED
FIREFIGHTERS AND PART-TIME WORKERS: FBU WINS EIGHT-YEAR
LEGAL BATTLE FOR PENSIONS AND FOR END TO DISCRIMINATION
The Fire Brigades Union has finally won
its eight-year legal battle to secure an end to discrimination
against firefighters working retained duty, following
an Employment Tribunal judgment. The case has major
implications for millions of part-time workers who will
also benefit from the rights established during 8-years
of legal action.
The Croydon Employment Tribunal judgment
is reinforced by a landmark legal judgment in the case
by the House of Lords on 1 March 2006 in favour of the
union. The Employment Tribunal found that firefighters
working retained duty were discriminated against when
they were denied access to a pension and the same sick
pay (pro-rata) as wholetime firefighters.
The judgment today, based on the principles
set out by the House of Lords earlier in the case, establishes
the right to equal treatment between part-time and full
time workers across a whole range of employment issues.
Apart from sick pay and pensions it potentially includes
training and all other work-related payments, including
expenses.
The case centred on the exclusion, before
April 2006, of retained firefighters from the Firefighters’
Pension Scheme and worse treatment under the sick pay
scheme. They claimed they were being treated less favourably
because they were part-time workers and that this was
unlawful.
The attempts by fire service employers
and the Secretary of State to justify the discrimination
in this case were dismissed. A further claim in relation
to increased pay for additional responsibilities has
been put on hold for further clarification.
FBU General Secretary Matt Wrack said:
“This old-fashioned discrimination deprived thousands
of firefighters of a pension and condemned them to worse
sick pay. Now retained firefighters, and millions of
part-time workers, will no longer have to accept second
class employment rights.
“We can’t have firefighters
at the same incidents, doing the same job, with one
group being discriminated against. A firefighter is
a firefighter, we take the same risks at the same incidents
and we deserve the same equal treatment.
“The FBU has ended the practice
of firefighters who had served their communities for
up to 30 years being denied a pension. We are proud
we have defeated the strenuous attempts of Government
and the employers to justify this appalling behaviour.
“The Fire Brigades Union has fought
this case for many years against great odds. Once again
we have proved we are the only organisation in the fire
service with the will and the means to protect firefighters
of all duty systems.
“No one else in the fire service
had the guts, the will or the means to do what we have
done. In winning we have also established the clear
legal rights of part-time workers not to be treated
less favourably than full-time workers.
“What we now need is a proper negotiated
agreement to set out how we put things right. I would
urge the Government and employers to accept this as
the right way ahead.”
The tribunal considered 12 test cases
from a total of 12,000 cases lodged at tribunal in 2000
on behalf of firefighters working retained duty across
the UK. The decision applies to all FBU members working
retained duty in all fire brigades in Scotland, Wales,
Northern Ireland and England (London has no firefighters
working retained duty).
Professional firefighters working retained
duty are called to their fire station by way of a bleeper
known as an ‘alerter’. They are typically
on call for around 120 hours a week (although technically
part-time workers) with the rest of the time going about
their other work or business.
Predominantly based outside urban areas
and major towns, 60% of the UK land mass is served by
firefighters working retained duty. They attend the
same major incidents as firefighters working other shift
and duty systems eg the 2007 floods, Buncefield, and
Lockerbie, the biggest loss of life in a single terrorist
incident in the UK.
PENSIONS BATTLE FOR FIREFIGHTERS WORKING
RETAINED DUTY
The legal victory for firefighters working
the Retained Duty System follows an 8-year legal battle
which started in 2000 when 12,000 cases were lodged
at Employment Tribunal. The case was originally lost
at tribunal, Employment Appeal Tribunal and Court of
Appeal.
The House of Lords made a landmark judgment
on 1 March 2006 – by a 3 to 2 majority of Law
Lords – which paved the way for firefighters working
Retained Duty System to have access to the current Firefighters
Pension Scheme. They have had access to the New Firefighters
Pension Scheme since April 2006.
This decision – hailed by legal
experts as one of the most important legal decisions
for part-time workers – also opened the door to
better sick pay and access to a host of other rights
based on the principles of equal treatment with wholetime
firefighters.
The case centred on the exclusion of retained
firefighters from the Firefighters’ Pension Scheme
and worse treatment under the sick pay scheme. They
claimed they were being treated differently because
they are part-time workers and that this was unlawful.
The FBU backed the test case throughout.
The union was represented by leading employment and
pension lawyers Thompsons Solicitors, Robin Allen QC
and barrister Martin Seaward.
The case returned to Employment Tribunal
in March and November 2007 and again in January 2008.
The final tribunal decision was reserved.
The FBU used the Part-Time Workers (Prevention
of Less Favourable Treatment) Regulations 2000 to argue
that retained fire-fighters, as “part-time”
workers, are being discriminated against in relation
to their whole-time colleagues. The FBU lodged Employment
Tribunal claims in 2000 claiming that they should receive
the same entitlements to membership of the Firefighters
Pension Scheme, sick pay; and additional pay for additional
responsibilities as their whole-time colleagues.
The cases were brought against ALL Fire
Service employers of fire-fighters working RDS -who
are FBU members - throughout the United Kingdom and
what was then the Office of the Deputy Prime Minister
(as the administrator of the Pension Scheme) but is
now the Department for Communities and Local Government.
Twelve “lead” cases were selected
from the Royal Berkshire and Kent and Medway Towns Fire
Authorities out of a total of 12,000 employment cases
lodged. There are approximately 18,000 firefighters
working retained duty across the UK.
The claims were rejected at the Employment
Tribunal, the Employment Appeal Tribunal and the Court
of Appeal. But the House of Lords ruled that retained
and whole-time fire-fighters’ were employed under
the “same type of contract”. Employers could
not draw a distinction between the two types of contract
and defeat the claim.
The House of Lords ruled the original
Employment Tribunal had misapplied the law in determining
that the work of retained and whole-time fire-fighters
was not “the same or broadly similar”. This
part of the case was referred back to the Employment
Tribunal for re-consideration in the light of the House
of Lords’ judgment.
In the leading judgment Law Lord Baroness
Hale noted that “the Tribunal found that ‘at
the scene of the fire the actual job function carried
out by all attending is effectively the same’.
The retained and whole-time firefighters were indistinguishable
from one another”.
She went on to say:” the fact that
the full-timers do some extra tasks would not prevent
their work being the same or broadly similar……weight
should be given to the extent to which their work is
in fact the same and to the importance of that work
to the enterprise as a whole. Otherwise one runs the
risk of giving too much weight to differences which
are the almost inevitable result of one worker working
full-time and another working less than full-time.”
Lord Hope, in a supporting judgment said
that the Tribunal’s analysis “led them to
concentrate on the differences and not to assess the
weight that ought to be given to the similarities.” |
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