Settlement of Part-time workers claims

The RFU has always championed the right of retained firefighters to equality of treatment with their wholetime equivalents. In this regard the RFU has supported not just individual members with claims, but has also championed group causes.
 
One particular group cause has concerned less favourable treatment of retained firefighters with regards to terms and conditions of employment, including, specifically, pay and access to the Firemen’s Pension Scheme.
 
As you will know from our most recent briefing in June 2010, a settlement offer was put forward by the Fire Service employers and we are pleased to inform members that after lengthy negotiations, a formal agreement has now been reached in relation to these claims. The purpose of this circular is to explain the background to the settlement negotiations and the offer, to enable members to make an informed decision whether to accept the offer or not.
 
Background
 
On 1 July 2000, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“Regulations”), were introduced and, as their title suggests, they are aimed at ensuring part-time workers (such as retained firefighters), are not treated less favourably when compared to their full-time counterparts. Upon the Regulations being introduced, and based on longstanding concerns about inequalities with wholetime personnel, the RFU advised its members to lodge claims before the Employment Tribunal alleging that their terms and conditions of employment (particularly in relation to pay and access to the Firemen’s Pension Scheme (“Pension Scheme”)), were less favourable and, therefore, discriminatory. These claims are known collectively as the “Matthews” claims.
 
This action was part of a concerted campaign by the RFU on behalf of its membership and followed similar claims that the RFU had previously assisted its members to bring in the early 1990’s under the Equal Pay Act 1970 (these claims are known collectively as the “Preston” claims). Those claims related specifically to access to the Pension Scheme (although did include some aspects of terms and conditions), and followed a landmark European ruling that the failure to allow groups of predominantly part-timers to join an employer’s pension scheme could amount to sex discrimination.
 
As you will be aware from RFU circulars, the Matthews and Preston claims were stayed pending the outcome of a number of test cases in the Matthews claims, which involved members of the FBU. Unfortunately, since the test cases did not include any RFU members, the FBU sought to exclude us from the proceedings. Despite the FBU’s best efforts, we have retained our involvement and have continued to represent our members’ interests by way of a watching brief and also via our good relations with the other parties involved.
 
It is worth noting that whilst the FBU has been involved in the test cases, it was actually the RFU that first took up the issue of less favourable treatment. Indeed, our members started lodging claims (using template claim forms that had been pre-prepared by our specialist legal team, which includes a QC), as soon as the Regulations came into force on 1 July 2000. The FBU claims were lodged several months later on or around 12 December 2000. The RFU have continued to safeguard its members’ interests over the past ten years by issuing claims under the Regulations on behalf of members leaving the Fire Service so that they too are included in this settlement.
 
Furthermore, the RFU’s template claim form included 9 additional categories of claim that were not addressed by the FBU claimants. These additional categories have now had to be factored in by the Fire Service employers when making the settlement offer and demonstrate the importance of the RFU’s contribution to the proceedings.
 
The Offer
 
Following a decision by the Employment Tribunal in the Matthews claims which held that retained firefighters had been treated less favourably than their wholetime counterparts, the Fire Service employers and the RFU entered in to negotiations to resolve the outstanding RFU claims. The resulting position includes payment to all eligible members of a financial sum to resolve the outstanding claims. The financial offer can be summarised as follows:
 
  • The compensation paid to you (the “Compensation Payment”) will be based on the rank/role you held on 30 June 2010 (or, if you are no longer serving, the rank/role you held on the date of leaving service provided that an Employment Tribunal claim has been made on your behalf). If you have not lodged an Employment Tribunal claim and it is now in excess of three months since your employment ended, I am afraid that you are not eligible to receive a Compensation Payment. 
  • For the avoidance of doubt, even if you have not issued a claim, if you are still employed by the Fire Service, and you were employed during any part of the Reference Period, you will be eligible for a Compensation Payment. 
  • The amounts listed below are the maximum amounts which will be applied pro-rata to your aggregated length of service based on total complete weeks during the Reference Period. 
  • In addition, where appropriate, the figures shall be adjusted on a pro-rata cover basis (based on the level of cover you provided on 30 June 2010), but to not less than 75%. The maximum possible amounts are:

– Firefighter £750
– Leading Firefighter/Crew Manager £778
– Sub-officer and Station Officer/Watch Managers £806

In any case, the minimum total amount payable to you shall be not less than £150.
 
The Compensation Payment will be made without deduction of tax or national insurance contributions and is not pensionable.
 
It is important to note that the offer made to you is in settlement of the part of your claim/prospective claim which relates to your terms and conditions of employment (i.e. sick pay etc.). It does not settle any claim/prospective claim which relates to pensions. This part of your claim/prospective claim is still being negotiated with central government. We will be in touch with you shortly about that.
 
Our recommendation
 
The RFU has considered the employers’ offer very carefully, and at our AGM in April 2010, the Executive Committee unanimously voted to recommend the offer to the RFU’s members (unless certain circumstances apply, please see below). This decision was also unanimously supported by a vote during the open forum section of the AGM.
 
The RFU recognises that the offer will be better for some members than for others, but overall we consider that it represents a fair offer taking into account the following factors:
 
The same offer is being made to all retained firefighters, irrespective of the trade union they belong to and in the case of current employees whether or not they have lodged claims.
 
The RFU have, as part of the settlement terms, obtained a specific written agreement from the Fire Service employers that the Fire Service employers will not, of its own accord, claw back our members' bounty payments. In addition, whilst they are not a party to this settlement agreement, central government has assured the RFU that it will not look to claw back bounty payments in relation to the pension element of the Matthews claims (which is yet to be resolved).
 
By accepting the sums currently on offer, members will have the benefit of money in their pockets, whereas litigating the claims could delay payment by further months, and possibly years.
 
Any settlement of the pensions aspects of the claims is very likely to require members to pay into a pension scheme the employee contributions that would have been payable if membership of the scheme had been available over the Reference Period. In other words, pension benefits will depend upon paying back contributions. Although this will depend upon individual circumstances, acceptance of the Compensation Payment may enable some members who would not otherwise be able to pay such contributions to be in a position to take the benefit of the potentially valuable pensions settlement, when it is achieved.
 
The cost of further litigation on the non-pensions issues is likely to be disproportionate to any further benefits which may be achieved, over and above the Compensation Payments currently on offer.
 
There is no guarantee that further litigation would result in greater sums being awarded than are currently on offer (indeed, it is possible that any compensation awarded could be lower).
 
Your options
 
Even though we are strongly recommending that the offer that the Fire Service employers have made be accepted, it is, of course, a matter for individual members to decide. That is why we have sought to make this circular as transparent as possible, to ensure that RFU members can make an informed choice. If any member wishes to obtain their own independent legal advice on the offer they are, of course, at liberty to do so.
 
What next?
 
The RFU and the Fire and Rescue Authorities will now proceed to provide information regarding claims and membership to a third party, Popularis Limited, who is assisting with the settlement of these claims. Popularis are bound by a duty of confidentiality in respect of this information, and it will be destroyed once the settlement process is completed. Popularis will process the information and members who are eligible to receive a Compensation Payment will receive a letter detailing the sum of the Compensation Payment they are entitled to. If you wish to accept the offer, you will need to respond within 14 days.
 
In the event that you have issued a claim in the Employment Tribunal, acceptance of the Compensation Payment will equate to authority for the RFU’s solicitors to withdraw the terms and conditions elements of your claim.
 
As detailed above, the RFU strongly recommend acceptance of the offer, unless certain circumstances apply. These are where:
 
(i) you have had a continuous period of sickness absence (excluding any period of paid sickness absence for illness or injury arising out of authorised duty) within the Reference Period of nine months or more; and/or
 
(ii) you are able to show to your Fire and Rescue Authority that the way in which the Compensation Payment has been applied to you (whether because of previous employment with another Fire Service or some other reason) is incorrect.
 
If such circumstances apply, the RFU will liaise with you further to ascertain the Compensation Payment you are entitled to.
 
Should these circumstances not apply to you, (or should the RFU disagree that these circumstances apply to you) and you elect to reject the offer, your claim will remain outstanding and will proceed to be heard by the Employment Tribunal in due course. It is important that you appreciate, however, that in light of the RFU’s decision to strongly recommend the offer to its members, the RFU will not fund any continued litigation of the non-pension related aspects of these claims.
 
As a result, if you elect to reject the offer and continue to litigate, the RFU will not be supporting your claim and will not be responsible for any costs you incur in so doing. The RFU will, of course, still support the pension aspects of your claim.
 
The Grey Book
 
As detailed above, the Grey Book has now been amended with a view to eliminating less favourable treatment between retained and wholetime employees. We would refer to the attached Circular for a copy of the amendments.
 
Members should be aware that, in accordance with the attached Circular, the amendments are to apply retrospectively, that is, there should have been no less favourable treatment under the terms of the Grey Book since 1 July 2010. We will be advising our local officials accordingly so that they are in a position to support members should any issues arise about the retrospective application of the Grey Book.
 
Conclusion
 
We appreciate that this has been a drawn out process (which unfortunately is still to be fully resolved, bearing in mind the outstanding matter of access to the Pension Scheme), but it is now drawing to a conclusion. Thankfully, the contribution and value of retained firefighters has been fully recognised by the Courts and Tribunals, so the litigation process has definitely been worthwhile.
 
Having achieved an important victory, the next step for the RFU is to ensure that the findings that have been made are put into practice. As ever, you can rest assured that the RFU will be at your side to continue to ensure that your rights are fully protected.
 
Should you have any questions that you feel are not answered by this circular, or remain uncertain how to proceed, please contact us.
 
John Barton
National General Secretary
 
Download the Employers circular
Appendix A  – Settlement agreement
Appendix B – Flowchard

 

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