[1998] NISSCSC A6/98(JSA) (19 February 1999)
Application No: A6/98(JSA)
"6.2 The Tribunal's attention is drawn to the fact that theadjudication officer's decision was given in ignorance of
the material fact that Mrs G… [sic] was employed for
over 16 hours per week during her term-time contract and
therefore was engaged in remunerative work. The review decision
is presented for consideration by the Tribunal as follows:-
"Mrs O'G... was absent from employment by reason of holiday on 14.07.97 and 15.07.97 and therefore should be treated as
engaged in remunerative work for both days.
She was not absent from employment by reason of holiday from 08.07.97 to 13.07.97 or from 16.07.97 to 08.08.97 and therefore should not be treated as engaged in remunerative work for both periods.
6.3 As the review decision means that Mrs O'G... has entitlement
to Jobseeker's Allowance for the full period of her claim other
than 14.07.97 and 15.07.97, the only question for consideration
is whether or not Mrs O'G... is treated as engaged in remunerative work on both these days."
"I would submit that Mrs O'G... should be treated as engaged in remunerative work for those public/bank holidays which fall duringthe period of her claim for Jobseekers Allowance ie 14.07.97 and
15.07.97. (Tab 5)."
[Tab 5 referred to a letter from the South Eastern Education and
Library Board setting out certain statutory holidays for
administrative, executive, clerical, professional and technical staff
employed by the Board.]
"Appeal disallowed.Appellant was absent from employment by reason of holiday on 14 July
1997 and 15 July 1997. The appellant is treated as engaged in
remunerative work on both these days ie public/bank holidays on
14 July 1997 and 15 July 1997".
"4. The appellant was not absent from employment by reason of holidayfrom 8 July 1997 to 13 July 1997 or from 16 July 1997 to 8 August 1997
and therefore should not be treated as engaged in remunerative work
for both these periods.
5. The appellant has entitlement to Job Seekers Allowance for the full
period of her claim other than 14 July 1997 and 15 July 1997.
6. The appellant was absent from employment by reason of holiday on
14 July 197 (sic) and 15 July 1997 and should be treated as engaged
in remunerative work for both these public/bank holidays, which fall
during the period of her claim for Job Seekers Allowance".
"It would have been preferable if the Tribunal had stated specificallythat it was upholding the decision of the Adjudication Officer as set
out in his submission, but it is entirely clear what the Tribunal was
in fact doing - namely deciding that Invalid Care Allowance was not
payable from and including 13 January 1993 to 12 November 1995. To
some extent the words "Appeal Disallowed" in the decision are mere surplusage. Accordingly I do not consider that there has been any
error in law in the Tribunal's decision in this respect."
"STATUTORY AND OTHER PUBLIC HOLIDAYS.Clerical staff will be entitled to statutory holidays with pay where
such holidays fall during term time. There will be no entitlement to
pay in lieu of holidays falling during school holidays".
"Please ensure that all AECP & T staff are informed of the followingholiday arrangements".
They then included Monday 14 July 1997 and Tuesday 15 July 1997 - 2 days.
"3. A recognised holiday does not cease to be such merely because itfalls during a time when the establishment is closed owing to
economic causes, or because it falls at a time when a particular claimant would in the ordinary course have been "stood off" under
a system of short-term working, or because it falls on a day upon which no work is usually done, either in the establishment
generally or by a particular shift or by the particular claimant".
"That word "engaged" shows the emphasis on a claimant, if he or she isto be disentitled to income support, actually doing some work during
the period of proposed disentitlement. It is not tied to the separate
and distinct question as to whether a claimant is subject to a
contract of employment for that period."
However, what the Tribunal was dealing with here was not whether Mrs O'G... was actually engaged in work on the 2 days in question - there was no doubt that she was not; what it was dealing with was whether or not under regulation 52 she should be treated as engaged in remunerative work. She could be so treated only if her absence from work was either without good cause or by reason of a recognised customary or other holiday. The Tribunal concluded on the basis set out above that Mrs O'G... was on a recognised customary or other holiday. It therefore recognised the distinction and Mr O'G... is quite correct that such a distinction exists between the subsistence of the contract of employment and whether or not the claimant is actually engaged in remunerative work. The Tribunal did not err in law in this respect.
Similarly the fact that certain members of staff were keyholders does not mean that an institution cannot be closed. People holding keys and being able to come in does not mean that an institution is not closed for its normal purpose. It is the institution rather than the building which is relevant.
(Signed): M.F. Brown
COMMISSIONER
19 February 1999