UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CJSA_1434_2000 (03 July 2001)

 


R(JSA) 4/02


Mr. E. A. L. Bano CJSA/1434/2000

3.7.01

Discrimination on grounds of sex - jobseeker's allowance - requirement that a claimant be available for employment for at least 40 hours per week - whether indirect discrimination contrary to the Sex Discrimination Act 1975 or Council Directive 79/7/EEC

The claimant indicated on her jobseeker's agreement form that she was prepared to work for at most 20 hours per week. She was initially awarded benefit, but her claim was subsequently disallowed because she had restricted the number of hours that she was prepared to work. The claimant's appeal to the tribunal was dismissed and she appealed to the Commissioner. She challenged the requirement contained in regulation 6 of the Jobseeker's Allowance Regulations 1996 that a claimant be available for employment for at least 40 hours per week, on the basis that it was indirectly sexually discriminatory and was thus contrary to both the Sex Discrimination Act 1975 and to Council Directive 79/7/EEC. The alleged discrimination arose because the percentage of women with no dependent children who work part-time is substantially larger than the equivalent percentage of men, and that discrimination existed notwithstanding the provisions of regulations 13(3) and (4) of the 1996 regulations which permit claimants to restrict their availability to less than 40 hours per week on account either of their physical or mental condition or of their caring responsibilities.

Held, dismissing the appeal, that:

the statistics on which the claimant sought to establish the discriminatory effect of regulation 6 related to the working population, but, since jobseeker's allowance is available only to those who are not working, or are working for 16 hours or less per week, the working population is not the relevant pool for consideration;

the requirement as to availability in regulation 6 is not indirectly discriminatory because it is not one with which a greater proportion of one sex than the other is unable, as distinct from unwilling, to comply (judgment of the European Court of Justice in R v The Secretary of State for Employment ex parte Seymour-Smith (Case No. C-167-197) at paragraph 60 applied);

in a case of indirect discrimination based on statistical comparison (the "demographic method") there is a need to be able to state whether or not any member of the relevant population satisfies the requirement or condition in issue (the judgments of the European Court of Justice in Seymour-Smith and of Mustill LJ (as he then was) in Jones v CAO [1990] IRLR 533 considered);

because regulation 13(4) exempts claimants with caring responsibilities from the availability requirement and regulation 13(3) enables claimants with physical or mental disabilities to restrict their availability in any reasonable way, it was not possible to identify any category of claimant unable to comply with the 40 hour availability requirement, and, in the absence of evidence of the existence of such a category, compliance with regulation 6 must be regarded as a matter of choice for each individual claimant;

given that the necessary elements to establish a claim of indirect discrimination on a statistical or demographic basis were therefore lacking , the claim of indirect discrimination failed;

furthermore, the tribunal had not erred in law by failing to consider whether the claimant should be regarded as available for work under regulation 16 as that regulation exempts claimants in prescribed circumstances from the requirement to be available for any employed earner's employment, but does not enable claimants to limit their availability to less than 40 hours per week.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal given on 9 December 1999 is not erroneous in point of law. I therefore dismiss this appeal.
2. The principal issue in this appeal is whether the requirement that a claimant must be willing and able to take up employment of at least 40 hours per week in order to qualify for a jobseeker's allowance contravenes EEC Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Although claimants for jobseeker's allowance with caring responsibilities are permitted to restrict their availability for work to less than 40 (but not less than 16) hours per week, the claimant contends that the requirement is nevertheless indirectly discriminatory and contrary to both UK and EU law because the percentage of women with no dependent children who work part-time is substantially larger than the equivalent percentage of men. I held an oral hearing of the appeal on 2 January 2001, at which the claimant appeared on her own behalf and the Secretary of State was represented by Ms. Vicky Bergmann of the Department of Social Security Solicitor's Office. The oral submissions were later supplemented by additional statistical and research material and by further written submissions, in accordance with directions which I gave at the hearing.
3. The claimant, who is female, was made redundant after almost 20 years of part-time employment as a secretary. She claimed a jobseeker's allowance and on 1 April 1999 she completed a jobseeker's agreement form. The claimant has stated that she has domestic responsibilities which prevent her from coping with the pressures of a full-time job, but she has not asserted that she has caring responsibilities such as to prevent her from working full-time. However, she considers that, because she has worked part-time for a long period and paid National Insurance contributions at the same rate as if she had worked full-time, she should be entitled to limit her availability for work to part-time hours. On the jobseeker's agreement form she therefore stated that she was looking for work as a secretary or in administration, and was available to work from 8.00 a.m. to 5 p.m. from Monday to Thursday and from 8.00 a.m. to 12.00 a.m. on Fridays, but also stated in the form that she was prepared to work for at most 20 hours per week. In a separate statement made later on the same day she confirmed that she did not wish to work full-time. It appears that she was initially informed that she had been awarded benefit and received payment, but on 27 April 1999 the claim was disallowed because she had placed restrictions on the number of hours she was prepared to work. The claimant's appeal to the tribunal against that decision was dismissed on 9 December 1999, and it is against the decision of the tribunal that the claimant, with the leave of the chairman, now appeals.
4. Jobseeker's allowance has been described as an "active" rather than a "passive" benefit, in that it requires claimants to be available for employment and actively seeking work, in accordance with a programme of activity set out in a jobseeker's agreement. Those fundamental requirements of the scheme are enacted in section 1(2) of the Jobseeker's Act 1995, which provides:

"Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he––

(a) is available for employment;

(b) has entered into a jobseeker's agreement, which remains in force;

(c) is actively seeking employment;

(d) satisfies either––

(i) the conditions set out in section 2; or

(ii) the conditions set out in section 3;

(e) is not engaged in remunerative work;

(f) is capable of work;

(g) is not receiving relevant education;

(h) is under pensionable age; and

(i) is in Great Britain.

Subsection (4) provides for two forms of jobseeker's allowance:

"(4) In this Act––

"a contribution-based jobseeker's allowance" means a jobseeker's allowance entitlement to which is based on the claimant's satisfying conditions which include those in section 2; and

"an income-based jobseeker's allowance" means a jobseeker's allowance entitlement to which is based on the claimant's satisfying conditions which include those set out in section 3."

Sections 6(1) and (2) of the Act, dealing with availability for employment, provide:

"(1) For the purposes of this Act, a person is available for employment if he is willing and able to take up immediately any employed earner's employment.

(2) Subsection (1) is subject to such provisions as may be made by regulations; and those regulations may, in particular, provide that a person––

(a) may restrict his availability for employment in any week in such ways as may be prescribed; or

(b) may restrict his availability for employment in any week in such circumstances as may be prescribed (for example, on grounds of conscience, religious conviction or physical or mental condition or because he is caring for another person) and in such ways as may be prescribed."

5. The relevant regulations are the Jobseeker's Allowance Regulations 1996. The requirement to be available for at least 40 hours per week is in regulation 6, which provides:

"(1) In order to be regarded as available for employment, a person must be willing and able to take up employment of at least 40 hours per week, unless he has restricted his availability in accordance with paragraph (3) or (4) of regulation 13 or paragraph (2) of regulation 17 or two or more of those provisions.

(2) In order to be regarded as available for employment, a person must be willing and able to take up employment of less than 40 hours per week but not for a greater number of hours per week than the number for which he is available in accordance with paragraph (3) or (4) of regulation 13 or paragraph (2) of regulation 17 or two or more of those provisions."

Regulation 13 provides for certain groups to impose additional restrictions on their availability. Regulation 13(3) provides:

"A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition."

In relation to persons with caring responsibilities, paragraphs (4) and (5) provide:

"(4) A person with caring responsibilities may restrict the total number of hours for which he is available for employment to less than 40 hours in any week providing

(a) in that week he is available for employment for as many hours as his caring responsibilities allow and for the specific hours that those responsibilities allow and

(b) he has reasonable prospects of securing employment notwithstanding that restriction and

(c) he is available for employment of at least 16 hours in that week.

(5) In deciding whether a person satisfies the conditions in paragraph (4)(a), regard shall be had, in particular, to the following matters––

(a) the particular hours and days spent in caring;

(b) whether the caring responsibilities are shared with another person;

(c) the age and physical and mental condition of the person being cared for."

Regulation 14 provides for specific circumstances in which a person is to be treated as available for work, but it is not in dispute that none of those circumstances is applicable here.

6. In her submissions to the tribunal, the claimant contended that the 40 hour availability requirement contravenes section 1(1)(b) of the Sex Discrimination Act 1975, but the short answer to that submission is that social security legislation is not one of the areas to which the 1975 Act applies. However, the claimant also submits that the requirement contravenes European Communities Council Directive 79/7/EEC, on the progressive implementation of the principle of equal treatment of for men and women in matters of social security, which was made under Article 235 of the EC Treaty as part of the Community programme of legislation implementing the principle of equal pay. Article 3 prescribes the types of benefit to which the Directive applies and, although it has not been suggested that contribution-based Jobseeker's allowance (the form of the benefit in issue here) is not covered by the Directive, the recent decision of the Court of Appeal in Hockenjos v Secretary of State for Social Security, (The Times, May 17, 2001) that income-based jobseeker's allowance falls within the Directive puts it beyond doubt that contributions-based jobseeker's allowance is also within its scope.
7. Article 1 of the Directive provides:

"The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment".

Article 4 provides:

"1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

–– the scope of the schemes and the conditions of access thereto,

–– the obligation to contribute and the calculation of contributions,

–– the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement of benefits.

2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity."

8. The claimant's contention that regulation 6 of the Jobseeker's Allowance Regulations 1996 is indirectly sexually discriminatory is based on statistics contained in the Equal Opportunities Commission's publication "Facts about Women and Men in Great Britain 1999", which show that in 1998 the percentage of women over the age of 16 in Great Britain who worked part-time was 44%, compared with 8% of men. However, figures are also given for the employment type of men and women by age of youngest child, showing that in the same year the percentage of women with no dependent children employed part-time was 32%, compared with 10% of men. On the basis of those statistics, the claimant contends that regulation 6 of the Jobseeker's Allowance Regulations is indirectly sexually discriminatory notwithstanding the provisions in regulations 13(3) and (4) permitting claimants with caring responsibilities to restrict their availability to less than 40 hours per week, because the proportion of women without caring responsibilities working part-time is still substantially larger than the corresponding proportion of men.
9. Ms. Bergmann, in her supplementary written submission, does not dispute the substantial accuracy of the figures relied on by the claimant, but points out that the figures for women without dependent children includes both those with other caring responsibilities and those with a disability or illness which prevents them from working full-time. The research papers supplied by Ms. Bergmann indicate that part-time working is generally a matter of choice rather than of necessity, particularly among those women who have a partner working more than 30 hours a week. Relying on the judgment of the European Court of Justice in R v Secretary of State for Employment ex parte Seymour-Smith (Case No. C-167-97), Ms. Bergmann submits that a provision is only discriminatory when a greater proportion of one sex than of the other is unable, as distinct from unwilling, to comply with the requirement in question. Ms. Bergmann points out that a claimant for jobseeker's allowance is not precluded from looking for part-time work, as well as being available for full-time work, and contends that the claimant has failed to show that for persons without caring responsibilities availability or non-availability for full-time work is anything other than a matter of choice. Finally, Ms. Bergmann submits that the 40 hour availability rule is objectively justified by the need to prevent claimants delaying their return to work by imposing unnecessary restrictions on their availability.
10. The statistics on which the claimant relies to establish the discriminatory effect of regulation 6 of the Jobseeker's Allowance Regulations relate to the working population, but since jobseeker's allowance is available only to those who are not working, or who are working for 16 hours or less per week, the working population is not the relevant pool. It seems to me to be difficult to make any valid transpositions from statistics about the working population to claimants who are unemployed and claiming jobseeker's allowance, since there may be both male and female part-time workers who wish to seek full-time work or leave the labour market altogether on becoming unemployed, particularly in view of the requirement that claimants for jobseeker's allowance must be willing and able to take up any employed earner's employment.
11. Even if any valid conclusions on the impact of regulation 6 can be drawn from the statistics concerning the percentages of men and women working part-time, I have come to the conclusion that Ms. Bergmann is correct in submitting that the requirement cannot be indirectly discriminatory, since it is not one with which a claimant either can or cannot comply. In Seymour-Smith female applicants in proceedings before industrial tribunals who had been dismissed before completing the period of service needed to acquire the right not to be unfairly dismissed (then two years) brought proceedings for judicial review to quash the statutory instrument creating the qualifying period. The applicants contended that the two year qualifying period was indirectly discriminatory and therefore contrary to EU Council Directive 76/207 and Article 119 of the EC Treaty on the basis of statistical evidence that the percentage of women who did not fulfil the requirement was greater than the equivalent percentage of men. The House of Lords referred to the European Court of Justice five questions arising in the proceedings, including the question of the test to be applied for determining whether a measure adopted by a member state has such a degree of disparate effect as between men and women as to amount to indirect discrimination. The court applied the principles developed in earlier cases, in which unfavourable treatment of part-time workers had been held to discriminate indirectly against women. The judgment summarised the court's approach in such cases as follows (paragraph 60):

"As the court has said on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years' employment under the disputed rule. That situation would be evidence of apparent sex discrimination unless the disputed rule were justified by objective factors unrelated to any discrimination based on sex."

12. In the part-time worker cases, employees had to be engaged in full-time work in order to qualify for the relevant benefit, and in Seymour-Smith employees had to have acquired two years continuous employment in order to bring a claim of unfair dismissal. In those cases it was therefore possible to state objectively whether or not a member of the relevant pool of employees satisfied the condition in question, and I agree with Ms. Bergmann that the words "is able" in the judgment of the court in Seymour-Smith reflect the need in a case of indirect discrimination based on statistical comparison (sometimes called the "demographic method") to be able to state whether or not any member of the relevant population satisfies the requirement or condition in issue.
13. That need is also apparent from Jones v Chief Adjudication Officer [1990] IRLR 533 [also R(G) 2/91], in which the Court of Appeal gave guidance on the approach to be taken in determining whether indirect discrimination results from the operation of a statutory provision. The issue in that case was whether the provisions in the Social Security (Overlapping Benefits) Regulations 1979 providing for an invalidity pension increase paid to a husband in respect of his wife to be reduced or extinguished by invalid care allowance paid to his wife were in breach of Article 4 of Directive 79/7. Mustill LJ (as he then was) said:

"What we must consider is whether, if one looks not at individuals as a whole, but at the population of claimants as a whole, it can be seen that there is indirect discrimination. The parties agree that for this purpose it is the effect, not the intent of the legislation which counts. They also agree that for this purpose what was called the 'demographic' argument represents one way in which indirect discrimination can be established. As I understand it, the process for establishing discrimination on this basis takes the following shape. (For ease of illustration, I will assume that the complaint stems from the failure of a woman to satisfy a relevant positive qualification for selection, and that only one such qualification is in issue.)

1. Identify the criterion for selection.

2. Identify the relevant population, comprising all those who satisfy all the other criteria for selection. (I do not know to what extent this step in the process is articulated in the cases. To my mind it is vital to the intellectual soundness of the demographic argument).

3. Divide the relevant population into groups representing those who satisfy the criterion and those who do not.

4. Predict statistically what proportion of each group should consist of women.

5. Ascertain what are the actual male/female balances in the two groups.

6. Compare the actual with the predicted balances.

7. If women are found to be under-represented in the first group and over-represented in the second, it is proved that the criterion is discriminatory."

14. Because regulation 13(4) of the Jobseeker's Allowance Regulations exempts claimants with caring responsibilities from the requirement in regulation 6 to be willing and able to take up employment for 40 hours per week and regulation 13(3) enables claimants with physical and mental disabilities to restrict their availability in any way, provided that the restrictions are reasonable, it has not been possible to identify any category of claimant unable to comply with the 40 hour availability requirement. In the absence of evidence of the existence of any such category, I agree with Ms. Bergmann that compliance with regulation 6 must be regarded as a matter of choice for each individual claimant. The regulation therefore does not create a condition with which a claimant either can or cannot comply, and no statistical comparison of men and women on that basis is therefore possible. The elements necessary to establish a claim of indirect discrimination on a statistical, or demographic, basis in accordance with the approach of the European Court of Justice in Seymour-Smith and of the Court of Appeal in Jones are therefore lacking in this case, and I therefore consider that the claimant's claim of indirect discrimination on that basis must fail. Having reached that conclusion, I do not consider it necessary to deal with Ms. Bergmann's alternative submission that the 40 hour availability rule is objectively justified.
15. It is, however, necessary to deal with the claimant's subsidiary contention that she ought to have been treated as available for work for a period under regulation 16 of the Jobseeker's Allowance Regulations. That regulation provides:

"(1) A person who is available for employment––

(a) only in his usual occupation;

(b) only at a level of remuneration not lower than that which he is accustomed to receive, or

(c) only in his usual occupation and at a level of remuneration not lower than he is accustomed to receive

may be treated for a permitted period as available for employment in that period.

(2) Whether a person should be treated as available for a permitted period and if so, the length of that permitted period shall be determined having regard to the following factors––

(a) the person's usual occupation and any relevant skills or qualifications which he has;

(b) the length of any period during which he has undergone training relevant to that occupation;

(c) the length of the period during which he has been employed in that occupation and the period since he was so employed;

(d) the availability and location of employment in that occupation.

(3) A permitted period shall be for a minimum of one week and a maximum of 13 weeks and shall start on the date of claim and in this paragraph "week" means any period of 7 consecutive days".

16. I agree with the submission on behalf of the Secretary of State that the tribunal did not err in law by failing to consider whether the claimant should be regarded as available for work under that provision. Regulation 16 exempts claimants in the prescribed circumstances from the requirement to be available for any employed earner's employment, but does not enable claimants to limit their availability to less than 40 hours per week. Because the claimant was not willing to comply with that requirement, she was unable to satisfy the basic condition of availability imposed by regulation 6, and it was therefore unnecessary for the tribunal to consider whether regulation 16 applied in her case.
17. For those reasons, I do not consider that the tribunal erred in law, and I therefore dismiss this appeal.

Date: 3 July 2001 (signed) E. A. L. Bano

Commissioner