Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C1/99(JSA) (25 February 1999)

 


Decision No: C1/99(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 JOBSEEKERS ALLOWANCE
Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 25 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by Mrs McM… for leave to appeal against the decision of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast on 25 September 1997. I held an oral hearing of the application which Mrs McM… attended accompanied by her representative Ms Slevin of Law Centre (NI) and Mr McLaughlin of Central Adjudication Services attended to represent the Adjudication Officer.
2. Having granted leave to appeal and with the consent of both parties I treat the application as an appeal and determine any question arising on same as though it were a question arising on an appeal.
3. My decision is that the decision of the Social Security Appeal Tribunal was in error of law. The decision which the Tribunal should have given is set out at the final paragraph of this decision.
4. The Tribunal had disallowed Mrs McM…'s appeal in relation to Jobseekers Allowance on the basis that she was in remunerative employment from 14 July 1997.
5. Mrs McM… is an ancillary worker at Queen's University, Belfast. She works during term-time and her application for Jobseekers Allowance was made for a period during the summer vacation.
6. Mrs McM… started working with Queen's University in September 1995. A document was produced to the Tribunal and was before me headed "Principal Statement of Terms and Conditions of Employment". This document indicated Mrs McM…'s date of appointment of 2 September 1996 and stated amongst other matters:-

"Continuity of employment:

For the purpose of defining "continuity of employment" as required

by legislation:

(1) the date of the start of your period of continuous service

with the Queen's University of Belfast is: 2 September 1996.

(2) employment with any other University or employer is not counted

as continuous service with this University."

The statement also stated:-

6. Hours of Work:

a. The hours of work are as specified in the letter of

appointment but may be varied, after consultation, by

your Head of Department to meet the needs of the

Department.

b. Overtime beyond normal full-time working hours is

payable as follows:

Monday to Saturday 1.5 times basic hourly rate

Sunday 2 times basic hourly rate

7. Holidays

a. Annual Holidays:

Your annual holiday entitlement with pay is pro-rata

your completed months of service (see table below):

Completed months of Service Pro-rata Entitlement

1 2 working days

2 3.5 working days

3 5 working days

4 7 working days

5 8.5 working days

6 10 working days

7 12 working days

8 13.5 working days

9 15 working days

10 17 working days

11 18.5 working days

12 20 working days

Where any of the holidays specified below [my underlining]

fall within a period of employment as a member of the

ancillary staff, that member is entitled to a holiday with

pay for the hours which would normally have been worked on

that day except where the employee is absent from work

without permission on the normal working day preceding or

following it.

b. Public Holidays

An employee receives eight days' leave with pay, which

normally are:

New Year's Day St Patrick's Day Good Friday Easter Monday

May Bank Holiday 12 July Christmas Day Boxing Day

Other Holidays:

In addition 6 other days' holiday are granted as follows:

Easter - 1 working day: Christmas 3 working days: plus

13 July: last Monday in August

c. Holiday Pay:

Your holiday pay will accrue at the rate of 1/12 of annual

holiday entitlement for each completed month of continuous

employment, calculated from 1 April in any year.

One day's pay = current basic weekly + *average weekly

pay additional earnings

___________________________________________

5

* Calculated on previous yearly period 1 June - 31 May,

consequently those employees commencing employment after

31 May in any year will not be paid the average weekly

additional earnings for holidays taken before 1 June of

the following year.

Appointment on or before 15th of any month will count as

a full month for the purpose of calculating holiday

entitlement. Termination of service on or after 16th of

any month will count as a full month for the purpose of

calculating accrued holiday pay. ....

16. Termination of Employment

Employment is terminable on either side by giving notice

in writing or by giving payment in lieu of notice. The

amount of notice to be given varies with the length of

continuous service as follows:-

Length of Service Employer Employee

Less than 2 years 1 week 1 week

2 years but less 1 week's notice 1 week or where

than 12 years possible, 1 week's notice for each year of service

12 years or more 12 weeks 1 week or where possible, 12 weeks' notice

Notice of termination of employment by members of staff is

required to be given in writing to the Head of Department

and the Personnel Officer. Employment will automatically

end on 31 August immediately following the date on which

the 65th Birthday is reached.

Employment may be terminated summarily on behalf of the

Vice-Chancellor by the Director of Human Resources or his

nominee in the event of gross misconduct."

7. Mrs McM…'s evidence to the Tribunal and indeed at the hearing before me was that the practice in Summer 1997 was the same as practised in the Summer of 1996, ie that she phoned the University in August to enquire if she was going back and they said 'yes'. She was sent a P45 form in July 1996 and again in July 1997. No new interview was necessary to enable her to resume work at the start of each autumn term and her hours of work did not fluctuate.
8. Additionally Mrs McM… informed me at hearing that her job was not readvertised and she did not have to reapply for it. She also informed me that she had received 4 weeks holiday pay. She stated that if she finished at the end of July she did not get paid for 12 and 13 July nor for the last Monday in August.
9. There was no evidence other than from the P45 form of any notice being given by the University nor of Mrs McM… giving any notice. Nor was there any evidence of payment being made in lieu of notice.
10. There was evidence from Mrs McM… that she was not guaranteed a restart of employment in September.
11. The Tribunal, in its findings of fact recorded as follows:-

"The appellant has been employed by Queen's University Belfast

as a domestic assistant since September 1995. She continues

to be so employed.

The appellant's terms and conditions of work for the academic

year 1996/97 indicate that she was appointed as an ancillary

domestic assistant on 2 September 1996 and that the date of her

period of continuous service is that employment commenced on

the same date. She was entitled to 34 days holidays, namely

20 working days' annual holidays, 8 days public holidays and

6 other days holidays (ie a total of 34 days), she was issued

with a P45 in July 1997 shortly after the end of the academic

years as she had been in July 1996. She resumed work at Queen's

University in September 1997 as she had done previously in

September 1996 and she originally commenced working there in

September 1995. During the months of August in both 1996 and

1997 she telephoned the University to enquire when she would

resume work and had the commencement date confirmed on both

occasions.

The job in which she was engaged was not advertised during the

long vacation in either 1996 or 1997. She was not required to

make any formal application for the job nor was any interview

required during either of those years. She has been employed

under the same terms and conditions since September 1995. Her

hours of work do not fluctuate and have not fluctuated which

she concedes.

Non term time at Queen's University is 112 days annually.

Holidays take up 34 days annually.

TOTAL 146 days annually.

The actual number of working days is 219 annually.

25½ hours x 36 weeks.

The appellant works 918 hours at Queen's University annually.

Her average hours of work per week is 29.34 hours."

12. In its reasons for the decision, the Tribunal, inter alia recorded:-

"The appellant has a recognisable cycle of employment which is

one year. ...

The cycle of employment includes periods during which the

appellant has periods of no work, namely the University

holiday periods. Commissioner's decision R(IS)15/94 is again

cited in support of our conclusion. The Commissioner held

in that decision that the claimant's recognisable cycle was a

yearly one and that school holidays were included in the cycle

as "periods in which the person does no work".

...

Regulation 52(1) of the Job Seekers Regulations (Northern Ireland)

1996 applies to the appellant. She is treated as being engaged

in remunerative work during the recognisable cycle of work

(one year) because her absences from work (146 days annually) are

by reason of recognised, customary or other holidays."

It is therefore apparent that the Tribunal treated the entire period when the claimant did not work ie 146 days per annum as being days of recognised customary or other holidays. It cited in support of this conclusion Commissioners Decisions R(IS)15/94, CIS/261/1990 and CIS/745/1993. The Tribunal did not have before it, as I have had, decision CIS/14661/1996 and CIS/521/1994.

13. In light of the fact that Mrs McM… did not have to re-apply for her job in Queen's University at the start of each academic year, in light of the fact no notice of termination of employment was given by either herself or her employer and in light of the fact that Mrs McM… was paid 20 days holiday pay at the finish of her period of working on 11 July (this being the entitlement for persons with 12 months completed service), it appears to me that the Tribunal was correct in its conclusion that Mrs McM…,s contract of employment subsisted throughout the period of the summer vacation.
14. In connection with the holiday pay, Mrs McM…'s contract of employment dictates that unless the 12 and 13 July and the August Bank holiday (which it describes as public holidays), are within a period of employment the relevant employee is not entitled to payment for same. In Mrs McM…'s case it appears her period of employment ended on 11 July 1997. I cannot therefore see how any part of the 20 days holiday pay can be considered to be attributed to any of those days.
15. As it was also common case that Mrs McM… was not engaged in remunerative work the initial question which I had to consider and which the Tribunal also had to consider was the period, if any, for which Mrs McM… could be treated as being in remunerative work. The relevant statutory provision governing this is Regulation 52(1) of the Jobseeker's Allowance (Northern Ireland) Regulations 1996. It provides:-

"Except in the case of a person on maternity leave or absent from

work through illness, a person shall be treated as engaged in

remunerative work during any period for which he is absent from

work referred to in regulation 51(1) (remunerative work) where the

absence is either without good cause or by reason of a recognised,

customary or other holiday".

16. The Tribunal erred in law in that it treated the entirety of Mrs McM…'s period of non-working as being by reason of recognised, customary or other holidays. It appears to me that this was not a reasonable conclusion to reach on the evidence. Mrs McM…'s conditions of service set out her holiday entitlement both paid and unpaid. I can see no reason for implying any other holiday entitlement whether recognised, customary or other holiday. Mrs McM… is a member of the ancilliary domestic staff at Queen's University. It appears to me quite unreasonable to treat her as having the same holiday entitlement as the academic staff.
17. As regards the decisions cited by the Tribunal in support of its conclusions, I do not think that they do support the Tribunal's conclusion on when a claimant was to be considered/treated as in remunerative work. CIS/745/1993 was dealing with hours of work. Its rationale was that a person could not be deemed to work 20 hours per week during the holiday period. What the Tribunal in the instant case had to deal with was whether or not the claimant could be treated as engaged in remunerative work during any part of the period of University closure because that part was a period of absence without good cause or of recognised customary or other holiday for her.
18. As regards R(IS) 15/94 this again was concerned with establishing what was the claimant's cycle of work and therefore the number of hours per week which she worked. It did not appear to involve a question of whether or not a person could be treated as engaged in remunerative work during periods of absence from work. CIS/261/1990 also appears to have involved the question of the cycle of work.
19. There are two issues to be considered here which the Tribunal appears to have confused. The first is the hours in which the claimant was actually engaged in remunerative work. This is to be determined by reference to regulation 51. The second is the periods (if any) for which she can be treated as engaged in remunerative work when it is agreed that she is not actually so engaged. These periods are to be determined by reference to regulation 52.
20. In this case while I am satisfied that the claimant had a running contract of employment with the University which extended over the period of the Christmas, Easter and Summer University vacations. I am also satisfied that for only part of those vacations could the claimant be said to be on holiday.
21. I have derived considerable assistance from the decision of Commissioner Rowland in CIS/14661/1996 and also from the claimant's contract of employment. Whether or not a claimant is paid for her holidays is not of course conclusive as to whether or not certain days are holidays or not. Neither of course is it irrelevant. In this case the claimant's contract of employment sets out that she is entitled to 20 working days holiday, having completed 12 months service. In addition certain public holidays are also to be regarded as periods of holiday though the claimant is only entitled to payment for them where they fall within a period of employment. Similarly certain other holiday periods are included. With regard to public holidays they are set out as being normally including 12th July and other holidays are to include 13 July. In the year 1997 the 12th and 13th July fell at a weekend and I am satisfied that the 14th and 15th July should have been treated as recognised or customary holidays during that year.
22. As regards the summer vacation period therefore I am satisfied that Mrs McM… is to be treated as on holiday for the 14th and 15th July 1997 and Monday 25th August 1997 whether paid or not for these days. These were in addition to the holiday entitlement for completed months of service.
23. As regards the period of holiday entitlement on a pro rata basis Mrs McM…'s evidence was that she got 4 weeks pay at the end of the summer term. This was paid on 11th July.
24. It was common case that for the period before me, ie from 14 July 1997 Mrs McM… could be considered as having entered into a Jobseeker's Agreement.
25. I am satisfied that for certain days only in the period from 14 July 1997 till she re-started work, Mrs McM… was to be treated as engaged in remunerative work. Those days are because her absence was due to a recognised, customary or other holiday. Those days are 14 and 15 July 1997 and 25 August 1997. For the remaining days in that period she was not and could not be treated as engaged in remunerative work.
26. The matter of the taking into account of Mrs McM…'s holiday pay has to be considered under Regulation 52(3), Regulation 94(2) and Regulation 96 of the JSA Regulations 1996. Regulation 94(1) and (2) provides for earnings (which in these circumstances include holiday pay) where they are payable in respect of a period to be taken into account for a period equal to the length of that period. In this instance the holiday pay was in respect of 20 working days. Working days were five days per week. The holiday pay thus is in respect of a period of 4 x 5 day weeks. It was due to be paid on 11 July 1997. It should thus be treated as paid on 11 July. It should (pursuant to Regulation 96) be taken into account for a period of 4 x 5 weeks (pursuant to Regulation 94) starting from Monday 14 July and ending on Friday 8 August. The fact that there were 2 days of unpaid holiday within that period does not, in my view, affect the operation of Regulation 94(1). The period remains the same. The earnings were paid in respect of a period and are to be taken into account over that period. Mrs McM…'s working days are 5 days per week and it is thus for 5 days per week that the payment is to be taken into account.
27. For the same reason the August Bank Holiday, ie Monday 25 August 1997

cannot be treated as covered by holiday pay but is to be treated as a day of absence from work by reason of recognised holiday.

28. It appears to me that Mrs McM…'s jobseeking period began on 14 July 1997 as she appeared to satisfy the conditions of Regulation 47(i) from and including that date. If, however, the parties are in dispute of the matter they are at liberty to return to me for the matter to be decided. Mrs McM… is not entitled to Jobseekers Allowance for the period Monday 14 July to Friday 8 August 1997 (both dates inclusive) and for Monday 25 August 1997. She cannot be treated as in remunerative work for any other days in the period 14 July 1997 to 31 August 1997.

(Signed): M F Brown

COMMISSIONER

25 February 1999