Andrew Short QC and Lydia Seymour resist EAT appeal on behalf of 6,000 firefighters

Andrew Short QC and Lydia Seymour, instructed by Walkers Solicitors, have successfully resisted an appeal in the EAT by various Fire and Rescue Authorities (FRAs) who had argued that they should not be liable for age discrimination claims from firefighters on the basis that they had been “acting pursuant to an enactment”.

The appeal was related to the case of Secretary of State for the Home Department & others v Sargeant [2019] EWCA Civ 2844; [2019] ICR 1489, in which Andrew and Lydia acted for over 6,000 firefighters who claimed that the decision to exclude them from their pension scheme in circumstances in which their older colleagues were allowed to remain in them, was age discrimination.  Those claims were upheld by the Court of Appeal against both the government and the FRAs, and permission to appeal that decision to the Supreme Court was denied in June 2019.

Following those decisions, the FRAs argued that they should not be liable for the claims – that they were simply implementing the government’s decisions.  These decisions took the form of a statutory instrument containing the rules of the pension scheme, and in applying those rules they were acting ‘pursuant to an enactment’, such that there was a defence under paragraph 1 of Schedule 22 of the Equality Act.

The EAT Decision

The EAT rejected that argument, holding (amongst other things) that:

• the effect of section 61 of the Equality Act was to insert a non-discrimination rule into every pension scheme;
• where provisions of a scheme are discriminatory (as was the case here in accordance with the Court of Appeal’s judgment) section 61 had the effect of automatically overriding those provisions;
• the FRAs were therefore not obliged (or even entitled) to implement the government’s decisions about firefighters’ pensions insofar as they were discriminatory.

Read the full judgment in the case of London Fire Commissioner Others v Ms R Sargeant Others here.

More information

Andrew Short QC has a highly respected employment practice which covers everything from complex or sensitive dismissal and discrimination cases through TUPE to high value contract, restrictive covenant, fiduciary duty and equal pay claims. He has acted in many of the leading cases relating to discrimination in pay and pensions, including Abdulla v Birmingham City Council, Brierley v Asda, and McCloud v Lord Chancellor, and Sargeant v LFEPA. Find out more about Andrew’s practice and recent cases here.

Lydia Seymour has over twenty years’ experience of all aspects of employment and discrimination law. She has specialised in complex discrimination claims (including claims at the interface of pensions and employment law) and High Court bonus and restrictive covenant issues. As well as acting on a number of claims raising issues of age discrimination and pension entitlement (including claims relating to transitional provisions in scheme amendments and redundancy), she has acted in a number of high profile claims brought by senior women working in the city alleging structural sex discrimination in relation to bonus payments and promotion. Find out more about Lydia’s practice here.

For a confidential discussion regarding any employment law or discrimination matter please contact Nicholas Levett, Practice Director, on +44 (0)207 427 4908.

News 16 Feb, 2021