Consultation outcome

Retained firefighters' pension remedy: equality impact assessment

Updated 8 September 2023

1. Name and outline of policy proposal, guidance, or operational activity

Title: The Firefighters’ Pension Schemes (England) (Amendment) Order 2023.

This order makes amendments to the Firefighters’ Pension Scheme (England) Order 2006 and the Firemen’s Pension Scheme Order 1992. The purpose is to extend the period during which persons who were employed in England as retained firefighters have access to a pension scheme to include pre-July 2000 service.

Following an Employment Tribunal^{[footnote 1]} (ET) determination (the Matthews case) that the denial of access to pension rights for retained firefighters constituted unfavourable treatment under the Part-Time Workers (Prevention of less Favourable treatment) Regulations 2000 which could not be justified, Fire and Rescue Authorities (FRAs) in England undertook an Options exercise (the ‘2014 Options exercise’) between 1 April 2014 and 30 September 2015 which gave eligible individuals the opportunity to join the modified scheme and purchase their historic service back to July 2000. This order will allow those individuals who did not get an opportunity to join in the 2014 Options exercise, an opportunity to join under the 2023 Options exercise.

In March 2014, shortly before the modified scheme was introduced, a related legal case raised the issue of whether part-time workers could include service from before 7 April 2000 for the purposes of calculating their pension entitlement. On 7 November 2018, the Court of Justice of the European Union gave its decision that they should be able to include their full period of earlier service for pension entitlement.

At present, the modified scheme is restricted to service accrued by affected retained firefighters from 1 July 2000. The effect of the ruling was that there should not be this backstop date for any retained firefighters employed on or beyond 7 April 2000. The Home Office now intends to provide a further remedy (‘the Matthews remedy’) to implement the requirements of the Part Time Workers Regulations, as interpreted in line with this ruling.

On 9 March 2022, the Home Office, the Local Government Association (LGA), Fire Brigades Union (FBU), and the Fire and Rescue Services Association (FRSA) signed a Memorandum of Understanding (MOU) relating to the delivery of Matthews remedy. The MOU set out that the remedy would be implemented through an 18-month long second options exercise.

The Home Office conducted a public consultation between 31 March and 9 June 2023 for retained firefighters’ pension to enable eligible individuals employed as retained firefighters between 7 April 2000 and 5 April 2006 to purchase their pre-July 2000 service and have this included in their pension entitlement.

Introduction

This EIA explains how the Home Office have given due consideration and complied with our equalities duties under the Equality Act 2010 throughout the development of our policy proposals to make amendments to the Firefighters’ Pension Scheme (England) Order 2006 and the Firemen’s Pension Scheme Order 1992, to provide eligible retained firefighters access to the modified scheme.

The changes will apply to any individual who:

• was employed as a retained firefighter at any date during the period 7 April 2000 to 30 June 2000 inclusive (these individuals are ‘Cohort 1’)

• was employed as a retained firefighter at any date during the period 7 April 2000 to 30 June 2000 inclusive and between 1 July 2000 to 5 April 2006 inclusive (these individuals are ‘Cohort 2’).

• was employed as a retained firefighter at any date during the period 1 July 2000 to 5 April 2006 inclusive and should have been eligible to join the modified scheme as part of the 2014 Options exercise but was not given an opportunity to do so (these individuals are ‘Cohort 3’)

2. Summary of the evidence considered in demonstrating due regard to the Public-Sector Equality Duty.

The Home Office have considered the report produced by the Government Actuary’s Department (GAD) titled “Matthews Remedy: Analysis to Support the Equalities Impact Assessment Firefighters’ Pension Schemes (England) – August 2023”. In producing that report, GAD considered evidence provided to the Local Government Association (LGA) by fifteen FRAs as part of a data collection exercise undertaken in December 2022. The FRAs were asked to identify and provide information on all retained firefighters eligible for the Matthews remedy.

The most recent data collected by the LGA in December 2022 did not cover all protected characteristics under the Equality Act 2010. Similarly, data for the entire retained workforce from the fire and rescue workforce and pensions statistics available online^{[footnote 2]} as at 31 March 2022 was not available for all protected characteristics. While the potential impact on the remaining equality groups below have been considered, the proposed changes will apply to all firefighters regardless of equality category as detailed below.

3. Consideration of the duty

The Public Sector Equality Duty (PSED) is set out in section 149 of the Equality Act 2010 and requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the 2010 Act

• advance equality of opportunity between people who share a protected characteristic and those who do not

• foster good relations between people who share a protected characteristic and those who do not

This involves having due regard to the need to: a) remove or minimise disadvantages suffered by people due to their protected characteristics, and b) take steps to meet the needs of people from protected groups where these are different from the needs of other people.

This EIA should be read alongside the Retained Firefighters’ Pensions: Proposed Changes to The Firefighters’ Pension Scheme (England) 2006 Consultation document and response.

3a. Consideration of limb 1 of the duty: Eliminate unlawful discrimination, harassment, victimisation, and any other conduct prohibited by the Equality Act.

Age

Background

It is expected that those affected will be older than the retained active scheme population who joined after 5 April 2006, as this policy decision only impacts those retained firefighters who were employed during the period 7 April 2000 to 5 April 2006

However, the remedy is targeted to put those eligible retained firefighters into a position whereby they are provided similar benefits as those provided by the 1992 Scheme.

Younger retained firefighters who joined on or after 6 April 2006 already have access to a scheme that is equivalent to the one that their peer regular-time firefighters have access to.

Analysis

Direct and Indirect Discrimination - The data in the table below includes those current scheme members who are still in service, those members who had left service before retirement age and those members who have already retired. It also includes those retained firefighters who did not join the Scheme at any point, however, are eligible to be given the opportunity to join the Scheme retrospectively as they had service in the FRA between 7 April 2000 and 5 April 2006.

For the purposes of the analysis, it has been assumed that in general firefighters will have retired by age 55 and so the firefighters in the age 56+ category are assumed to be pensioners. Therefore, the Home Office have ignored this group of eligible retained firefighters who it is assumed are now pensioners from the analysis below to ensure a more accurate comparison with the current retained workforce data.

The table sets out the age profile of all eligible retained firefighters in the fifteen FRAs as at 31 March 2022, as well as the age profile of the retained workforce from the same fifteen FRAs at the same date.

Age as at March 2022	Subset of eligible firefighters’ at 31 March 2022	Subset of retained workforce at 31 March 2022
17-24	0%	6%
25-35	-	32%
36-45	11%	30%
46-55	31%	24%
56+	52%	8%
Age is unknown	5%	0%

Note this is not actually zero, but denoted ‘-‘ as less than 1%. Therefore, percentages which are less than 0.5% have not been shown above, but it is noted that excluding these may mean the percentages do not sum to 100%.

This analysis identifies that:

• The majority of the retained firefighters who are eligible for remedy and are aged 55 and below are in the age bracket 46 to 55. There are very few eligible retained firefighters aged 35 and below.

• The majority of the retained workforce population are younger at ages 25 to 45.

• It should be noted that age for some eligible retained firefighters is recorded as unknown, which may skew this analysis somewhat, but would not alter the overall conclusions drawn below.

Disability

There are no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce.

Gender reassignment

There are no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce.

Marriage and civil partnership

There are no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce.

Pregnancy and maternity

There are no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce, however the Home Office expect the number of affected persons with these protected characteristics to be very low given the data for age and sex.

Race

Data was analysed on ethnicity provided by the recent data collected by the LGA in December 2022 on eligible retained firefighters. However only half of the fifteen FRAs who provided data had information on this protected characteristic. From the FRAs that did provide information on ethnicity, c60% of the eligible retained firefighters identified as ‘white/white-British’, <1% identified as other^{[footnote 3]}, and c40% of the responses were ‘unknown’.

Similarly, the analysed subset of the retained workforce data as at 31 March 2022 showed that 90% identified as ‘white’, c2% identified as other^{[footnote 4]} and 8% of the responses had ‘ethnic origin not stated’.

The information available of eligible retained firefighters has a large proportion of the responses as ‘unknown’ and is not detailed enough to analyse the characteristics of those members who are eligible for remedy. Therefore, it is difficult to draw any meaningful conclusions on this protected characteristic.

Religion or belief

There is no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce.

Sex

Background

It is important to note that sex and gender are two different concepts; gender identity is not always the same as the sex assigned at birth, and some people may not identify as having a gender or as non-binary. Gender reassignment is also a protected characteristic under the Equality Act 2010.

Over all periods, males have made up the majority of the firefighter population. It is expected that there will be more male firefighters impacted by remedy than female firefighters. Over time, more females have joined the firefighter workforce.

Remedy applies to those retained firefighters who were employed during the period 7 April 2000 to 5 April 2006. It is therefore expected that the proportion of female firefighters in the eligible member population will be lower than the proportion of females in the current retained firefighter workforce.

Analysis

It has been assumed that in general firefighters will have retired by age 55 and so the firefighters in the age 56+ category is assumed to be pensioners. Therefore, the Home Office have ignored this group of firefighters who are aged 56+ from the analysis below to ensure a more accurate comparison with the retained workforce data.

The following table sets out the sex profile of all eligible retained firefighters in the fifteen FRAs as at 31 March 2022, as well as the sex profile of the retained workforce from the same fifteen FRAs at the same date.

Age as at 31 March 2022	Subset of eligible firefighters’ at 31 March 2022			Subset of retained workforce at 31 March 2022
	Males	Females	Unknown	Males	Females
17-24	-	-	-	93%	7%
25-35	95%	5%	0%
36-45	91%	6%	3%
46-55	94%	4%	2%
56+	95%	1%	4%
Missing	97%	3%	0%

This analysis identifies that:

• Those retained firefighters who are eligible for remedy and are aged 55 or below, are less likely to be female at every age than the retained workforce. It should be noted that sex for some eligible retained firefighters is recorded as unknown, which may skew this analysis. However, if the Home Office assume that all unknown members are female, then the overall proportion of the eligible members, aged 55 or below, that are female would be around 6% compared to the 7% female in the workforce data.

Sexual orientation

There are no available data on these protected characteristics in relation to the eligible retained firefighters or Fire (England) retained workforce.

4. Summary of foreseeable impacts of policy proposal, guidance or operational activity on people who share protected characteristics

Protected Characteristic Group	Potential for Positive or Negative Impact?	Explanation	Action to address negative impact
Age	Yes	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of their current age. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.	It is inevitable that the proposed pension arrangements will not apply to those potentially younger retained firefighters who joined the fire service after 5 April 2006. Firefighters who were in service before April 2006 (who will, in general, be older than those in service after 2006) will be able to access special membership in 2006 Scheme, which in some respects, is more beneficial than the benefits available to 2006 standard members (who joined after 2006), and 2015 Scheme members. However, the Employment Tribunal held that the exclusion of retained firefighters to pension rights amount to unjustified unfavourable treatment under the Part Time Workers regulations 2000. The Home Office is seeking to address this by putting those eligible members into a position whereby they receive no less favourable treatment than regular firefighters employed at the same time, and the Home Office consider that this policy aim contributes to the justification of our approach.
Disability	None	Special members of the modified scheme will be eligible to retire on the ill-health terms of the standard 2006 scheme where it is determined that they have been permanently incapable of performing their role as a firefighter. Any former firefighters who are eligible to join the modified scheme as part of the 2023 Options exercise and who were medically retired between 7 April 2000 and 5 April 2006 will be entitled to receive the retrospective pension payments associated with a higher tier ill-health retirement (to include both lower tier and higher tier elements). This will be calculated in accordance with the standard 2006 scheme provisions and based on their special pensionable service up to the point of medical retirement.
Gender reassignment	None	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of any gender reassignment. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.
Marriage and civil partnership	None	The new pension arrangements do not explicitly make provision for marriage or civil partnerships. Under the general terms of the 2006 scheme which will apply, spouses, civil partners and unmarried partners will receive equal treatment in terms of survivor benefits as members of the modified scheme.
Pregnancy and maternity	None	Whilst the pension arrangements do not explicitly make provision for pregnancy and maternity leave, under the general terms of the 2006 scheme which will apply, members will still accrue pensionable service whilst on paid maternity leave, unpaid ordinary maternity leave, as well as any unpaid maternity leave on which the member has paid the required pension contributions. The same is applicable for paternity leave, ordinary adoption leave, paid adoption leave, as well as any unpaid adoption leave on which the member has paid the required pension contributions.
Race	Unknown	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of their race. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.
Religion or belief	None	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of their religion or belief. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.
Sex	Yes	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of their sex. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.	It is inevitable that the proposed pension arrangements will apply to the majority of retained male firefighters who joined the fire service after 5 April 2006. Firefighters who were in service before April 2006 (who will, in general, be male) will be able to access special membership in 2006 Scheme, which in some respects, is more beneficial than the benefits available to 2006 standard members (who joined after 2006), and 2015 Scheme members. This means that male firefighters are more likely to benefit from these changes, and female firefighters are less likely to be able to join as special members or purchase longer periods of special service. However, the Employment Tribunal held that the exclusion of retained firefighters to pension rights amount to unjustified unfavourable treatment under the Part Time Workers regulations 2000. The Home Office is seeking to address this by putting those eligible members into a position whereby they receive no less favourable treatment than regular firefighters employed at the same time, and the Home Office consider that this policy aim contributes to the justification of our approach.
Sexual orientation	None	The proposed pension arrangements will apply to all retained firefighters who satisfy the eligibility criteria, irrespective of their sexual orientation. Eligibility for membership will only apply to those defined, retained firefighters who were employed at any time during the period from 7 April 2000 to 6 April 2006.

5. In light of the overall policy objective, are there any ways to avoid or mitigate any of the negative impacts that you have identified above?

The Home Office has considered the impact of the proposed changes in the context of the PSED. The Home Office have not been able to identify any differences of treatment between members who are the same but for one of the protected characteristics. The PSED is an ongoing duty, and the Home Office will continue to consider and amend this assessment.

6. Review date

Ongoing.

7. Declaration

I have read the available evidence and I am satisfied that this demonstrates compliance, where relevant, with section 149 of the Equality Act 2010 and that due regard has been made to the need to: eliminate unlawful discrimination; advance equality of opportunity; and foster good relations.

SCS sign off: Peter Spreadbury

Name/Title: Police Workforce and Professionalism Unit

Directorate/Unit: Policing Policy Directorate

Lead contact: Anthony Mooney

Date: 31/08/2023

For monitoring purposes all completed EIA documents and updated EIAs must be sent to the [email protected]

Date sent to PSED Team: 31/08/2023

---

1. Matthews v. Kent and Medway Towns Fire Authority (2006)” (‘the Matthews case’) under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (‘the PTWR’) ↩

2. Fire and rescue workforce and pensions statistics: England, April 2021 to March 2022 - GOV.UK (www.gov.uk) ↩

3. Asian, Asian British, Black, African, Caribbean or Black British, Mixed, or multiple ethnic groups or Other ↩

4. Mixed, Asian, or Asian British, Black or Black British, Chinese or Other Ethnicity ↩