In a recent hearing, the tribunal struck out a case backed by the Fire and Rescue Service Association Jersey lodged on the grounds of age discrimination, which concerned more than 30 employees being moved to a less lucrative retirement scheme.
The decision came despite a similar case pushed by firefighter unions in the UK being pursued successfully.
The changes mean that affected employees’ pensions will be based on their career-average earnings rather than their final salary which will, in most cases, reduce their entitlement as they move from the PECRS to the CARE scheme.
They will also be required to work until the age of 60, rather than 55, and their compulsory contributions will be increased from 5% to 10%.
The union brought its legal case on the basis that this would contravene the Island’s discrimination laws, as younger employees, namely those under the age of 48 on 1 January 2019, would be required to switch plans or resign from their jobs. Older employees were allowed to remain on the original scheme.
In the latest of a string of tribunal rulings, the claim was dismissed as having ‘no reasonable prospect of success’ due to Article 33 of the 2013 Discrimination Law outlining that occupational pension schemes were effectively exempted from the provisions of the law.
Article 33 says: ‘The provision and the terms of an occupational pension
scheme, or any personal or group personal pension scheme, do not contravene this law in relation to the protected characteristic of age.’
In the judgment, however, the tribunal states its ‘discomfort’ that this clause was included in the legislation, following approval by the States.
‘The tribunal carefully considered both parties’ written and oral submissions in light of the above legislation and reports,’ the ruling says.
‘Having concluded that the transitional arrangements form part of the CARE Scheme, the tribunal then considered whether it was appropriate and/or whether the tribunal had jurisdiction to interpret Paragraph 33 in light of convention rights or any other grounds identified by Advocate Emmanuel [acting for the claimant].
‘Notwithstanding the tribunal’s discomfort that paragraph 33 appears to have been drafted with the aim of protecting the CARE Scheme, and to stifle any claim against the respondent relating to it, the tribunal did not consider it appropriate to interfere with the decision of the States Assembly to include paragraph 33 in the Discrimination Jersey Law 2013.’
In a statement released on its Facebook page, the FRSAJ claims that Jersey’s discrimination law is itself discriminatory due to the clause.
‘The same UK model has been shown to discriminate by age and as such is returning firefighters to the pension conditions and retirement ages they were contracted to,’ it read.
‘Our claim, while built on the same principles as the UK claim, was unsuccessful due to the nature of Jersey’s Discrimination Law. Discrimination Law that allows discrimination.
‘The [Tribunal] chairman was at pains to express the tribunal’s discomfort that the Discrimination (Jersey) Law 2013 appears to have been drafted with the aim of protecting the CARE pension scheme and to stifle any claim against the States Employment Board.
‘In addition, it enables the SEB to introduce any occupational pension scheme provisions, irrespective of their actual or potential impact on certain groups.’
It adds: ‘Thirty-two of our members, purely because of their age, will suffer financial detriment compared to those nearer to retirement, who would be affected the least, but were given greatest protection.
‘These firefighters will now retire at 60 years old, five years longer than they were contracted, while trying to maintain the fitness standard of an 18-year-old.
‘Studies show that up to 23% of personnel would fail to reach this criteria and would potentially force further actuarial reduction of their pension upon them.
‘Fires don’t discriminate; Jersey law does.’
