On behalf of over 13,500 police officers, we are challenging the “transitional provisions” which created three levels of pension membership, namely (a) protected members; (b) tapered members; and (c) unprotected members.
We are primarily arguing that protected members have been and continue to be treated more favourably than tapered and unprotected members because of age.
In addition, there are a higher proportion of female and ethnic minority officers now than there has been in the past, so a higher proportion of those affected by the terms of the introduction of the new pension scheme are female and or/ethnic minority. Therefore, officers may have additional claims for indirect race and sex discrimination.
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Police pensions FAQs
What are the pension challenges about?
In 2011, Lord Hutton of the Independent Public Service – Pensions Commission, set out his final report to the government into reforms of public sector pensions.
In 2012, the government commenced a consultation process across the public sector into its proposals for pension reform.
As of 1 April 2015, the pensions were reformed with more generous public sector pension schemes being closed (affecting Judges, firefighters, police officers, prison officers, civil servants amongst others).
Based primarily on an individual’s date of birth, they were either taken out of the better pension scheme altogether and put into the less favourable newer scheme (the unprotected group); or they were allowed to stay in the pension scheme for a limited period before moving onto the less favourable scheme (the tapered group); or they were allowed to remain on the older and better pension scheme (the protected group).
The police pensions claims being brought to the Employment Tribunal relate to the way in which some officers have been moved out of the better pension scheme wholly or partially whilst others have not. These are known as 'transitional protections' or 'transitional provisions'.
We are arguing that transitional provisions (which give some officers a better deal than others under the pension reforms) based on date of birth are discriminatory on the grounds of age. We also consider that there may be claims for equal pay, indirect race and sex discrimination.
The issues involved in the police pensions challenge are whether the transitional provisions (i.e. the way in which some but not all employees have been moved on to the less favourable CARE 2015 scheme) can be objectively justified by the police forces and the Home Secretary.
In 2018, the Court of Appeal decided that the equivalent changes in the Judges’ and Firefighters’ pension schemes could not be justified.
Can the government make changes to pensions?
The Government has the power to change your pension; however, they must do so lawfully and in a manner which is not discriminatory.
The police pension challenge does not dispute the government’s ability to close pension schemes and introduce new ones.
The crux of the current case relates to the manner in which the government has arbitrarily (based on date of birth) moved some officers into the less favourable CARE 2015 scheme, but others have not been moved at all or only partially.
We are disputing the way in which the Government has implemented the new pension scheme and the discriminatory impact it has had on younger officers and newer (younger) recruits without justification
What are 'transitional provisions'?
The transitional provisions applied to the pension scheme affect all officers who were contributing to the previous 1987 and/or 2006 police pension schemes.
Arrangements were made whereby some older police officers were exempted from the requirement to leave the 1987/2006 schemes ('protected officers'); some officers were required to join the CARE 2015 scheme on 1st April 2015 ('unprotected officers'); and other officers were/are required to move to the CARE 2015 scheme at a later date (“tapered officers”). This variation of treatment is due primarily to date of birth.
The term ‘transitional provisions’ describes the way the CARE 2015 scheme has been implemented for some officers but not all, based on age/date of birth.
As the workforce has started to diversify, there is more likely to be younger women and younger BAME people who have joined the police force more recently who are more likely to be disadvantaged as there are fewer women and/or BAME officers who are in the 'protected group' or 'tapered group'.
How do I know if I am affected?
The transitional provisions applied to the pension scheme affect all officers who have been required to join the CARE 2015 scheme or will be required to do so in due course.
If you were born after 01/04/1967 and were appointed as a police officer after 01/04/1992, there is a high possibility that you have been affected by the changes to the pension scheme and may have a claim for discrimination and/or equal pay.
Do the claims relating to transitional provisions (or transitional protections) only affect people who are tapered?
No. The term 'transitional provisions' (or 'transitional protections') describes the way the new CARE 2015 scheme has been implemented for some, but not all, based on age/date of birth.
Transitional protections refer to the fact that whilst some officers never have to join the CARE 2015 scheme ('protected officers') and some officers joined the CARE 2015 scheme when it was first introduced on 1st April 2015 ('unprotected officers'), there are a number of officers who will move to the CARE 2015 scheme at various dates, mostly between 2nd April 2015 and 31st March 2022, due to a combination of factors including date of birth, length of service and any previous pensions transferred into the police pension schemes ('tapered officers').
The claim itself is for any officer who has been, or will be, forced to join the CARE 2015 scheme and feels they are at a detriment by doing so. Therefore, this includes both unprotected and tapered officers.
These officers will be compared to those officers, who were largely within 10 years of retirement on 1st April 2012, who will never be required to join the CARE 2015 scheme – instead, they will retire on the 1987 or 2006 pension schemes.
If the discrimination claims are successful, what would happen next?
There are a number of possibilities in relation to remedy in the event the Employment Tribunal finds that the transitional provisions are discriminatory.
Below, we have set out the possible remedies that may result following the action
Injury to feelings
In discrimination cases, the claimants can ask the Employment Tribunal to award compensation for injury to feelings, which means compensation for the upset, hurt or distress the discrimination has caused the individual in addition to any financial losses. There are certain guidelines that assist the Tribunal in determining how much to award an individual for injury to feelings.
The Employment Tribunal also has power to make other awards for non-financial loss, such as aggravated and exemplary damages, but in this case the most likely award is for injury to feelings as outlined above.
If the claims are successful and the Tribunal declares that the transitional provisions are discriminatory and unlawful, it is possible that the Government could respond by 'levelling down' the protections.
Levelling down could include removal of the transitional provisions (i.e. so no-one is 'unprotected', 'tapered' or 'protected') and putting everyone into the CARE 2015 scheme regardless of their date of birth. However, we do not consider that this could be lawfully done retrospectively. In other words, those who currently have protection and are still members of the 1987 or 2006 Scheme are unlikely to have benefits already built up in either of those Schemes taken away; there is specific legislation in place that would require consent from affected members before the government could retrospectively level down. In any event, we consider such action may be unlawful.
If the government did level down from some future date, then it is likely to take some time for this to take effect following the end of the legal proceedings, which we have estimated may continue until around 2020. There is a chance that some claimants who have the longest period of tapered protection could lose a short period of protection in the event the government chooses to level down and does so before 31 March 2022.
If there is levelling down, those who have lodged claims in time would be compensated for any losses they have suffered from 1 April 2015 until the date levelling down takes effect. In addition, there is likely to be an award for injury to feelings.
There may be other ways in which the Government could remove the discriminatory effect of the transitional provisions, but we believe that the most likely options are as described above.
Levelling up – protecting all claimants
It is possible that all claimants are put back into their previous pension scheme (i.e. the 1987 or the 2006 Scheme) up to normal retirement age under the terms of that Scheme. This would then cure the discriminatory impact of the transitional provisions. This is often referred to as “levelling up”.
If the government’s response is to level up, those who bring claims are likely to benefit in two ways. First, they would benefit from the levelling up itself in that they would be put back into their previous scheme to build up further pension benefits up to normal retirement age.
Second, they may also be compensated in some way for the loss of the more generous benefits that they would have built up in their previous Scheme since 1 April 2015.
Can I instruct Leigh Day to bring a claim if I think I am affected by changes to my public sector pension?
If you are a police officer and feel you have been detrimentally affected by being forced to join the CARE 2015 scheme either already or at some point in the future, please complete our online questionnaire.
We will then review whether we are able to bring a claim on your behalf, and a member of the team will be in contact. Please note that contact is primarily made by email, so please do ensure you type your email address correctly.
The email address provided must be a personal email address; we are unable to liaise with work email addresses. If you are unsure about your pension circumstances, please contact your pension provider before completing the form, as all information provided must be accurate
We are unable to offer legal advice and representation’ to police officers in the following circumstances.
If any of the below circumstances apply to you please seek alternative representation by contacting the Law Society
- Stopped working as a police officer more than 3 months ago;
- Have voluntarily opted out of the CARE2015 police pension scheme at any point, including officers who have later re-joined the pension;
- Fully protected i.e. Not required to move to the CARE2015 police pension scheme at any point;
- Currently on a career break;
- Work in Northern Ireland;
- Work for Ministry of Defence (MOD) or the British Transport Police (BTP);
- Work for the National Crime Agency (NCA) and contribute to the Civil Service Pension;
- Were appointed as a police officer on or after 1st April 2015.
Although we are not representing officers with the above circumstances, this is not an indication as to whether you have a valid claim, and you may wish to contact alternative solicitors.
Time limits apply to legal claims, from a matter of weeks to several years depending on the type of claim so you may wish to act promptly. We are not in a position to provide advice to non-clients on the applicable limitation period in their matter.
Is the Police Federation right to discourage us from bringing claims?
As far as we are aware, the Police Federation’s previous views were based on their review of the prospects of the claims that they had undertaken with the Barristers they have instructed. We had reviewed the likelihood of success of the claims ourselves, and received advice from our own Barristers, and we were of the opinion that these claims had a good chance of being successful. This is why we chose to offer the first set of claims to Officers on a ‘no win, no fee’ basis.
Since the initial assessment, the Courts have ruled in favour of Judges and Firefighters and have decided that the transitional provisions are indeed unlawful. Their claims have succeeded and it is only a matter of time before the same is confirmed in the police pensions claims. We have asked the Home Office to concede the claims in this case to allow the Employment Tribunal to move towards assessing compensation for the officers in the claims.
We are not challenging the terms of the CARE 2015 scheme, but instead we are challenging the way it has been administered to certain groups in a discriminatory manner. It is our view that there were fairer ways to enforce the new pension scheme that would not have relied upon age of officers.
There could be a small number of officers who may not benefit from levelling down of the transitional protections, if that is the eventual outcome of the claims. However, the majority of officers are currently unprotected, or will become unprotected in the near future, and they are likely to benefit from levelling down or levelling up.
It is your choice as to whether you now wish to commence a claim. At this time, it remains unclear what the remedy will be and whether it will be applied retrospectively to all officers, or whether only those officers that have brought claims will be compensated for past discrimination. It is our current view, based upon recent Government statements, that compensation for past discrimination may only be applied to those with a claim in order to minimise government spending on public sector pensions.
We continue to welcome any discussions with the Police Federations about the current legal challenges.
How does Brexit affect my case?
Our preliminary review regarding the effects of Brexit is that we do not anticipate that leaving the European Union will affect current claims.
In the first instance, UK domestic law prohibits the forms of discrimination claimed in the police pensions challenge (age discrimination, indirect race/sex discrimination and equal pay), with EU law being a secondary argument.
It is understood from the government’s messages that EU law as it is at the date the UK leaves the EU, will remain part of UK law – subject to any further UK legislation, which will take time to implement. Therefore, at this stage, we anticipate that the legal arguments in the police pensions challenge are unlikely to be affected by Brexit.
Further, the European Convention of Human Rights is unaffected by Brexit and the police pensions challenge may have an on-going recourse to rely on this in the future.