UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2002] UKSSCSC CJSA_5732_1999 (26 September 2002)
URL: http://www.bailii.org/uk/cases/UKSSCSC/2002/CJSA_5732_1999.html
Cite as: [2002] UKSSCSC CJSA_5732_1999

[New search] [Printable RTF version] [Help]

[2002] UKSSCSC CJSA_5732_1999 (26 September 2002)

R(JSA) 4/03

Judge M. Harris CJSA/5732/1999

Mr. M. Rowland CJSA/5836/1999

Mr. E. A. L. Bano CJSA/3444/2000

26.9.02

European Union law – Council Directive 79/7/EEC – whether regulation 51(2)(c) of the Jobseeker's Allowance Regulations 1996 discriminates on grounds of sex

Remunerative work – term-time workers – calculation of hours of work

Each of the claimants was employed in an academic institution for over 16 hours a week during term- time. They claimed jobseeker's allowance during the summer vacation but their claims were disallowed and their appeals were dismissed by tribunals on the ground that they were in remunerative work as they worked for more than 16 hours a week. The tribunals relied on regulation 51(2)(c) of the Jobseeker's Allowance Regulations 1996 which provided that the number of hours for which a person was engaged in work was to be determined, "where the person works at a school or other educational establishment or at some other place of employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work, by disregarding those periods and any other periods in which he is not required to work." In Banks v. Chief Adjudication Officer [2001] UKHL 33 (reported as R(IS) 15/01), the House of Lords had held regulation 51(2)(c) to have the effect that the claimant was to be treated as being in remunerative work over the whole cycle of work (including school holidays during which no work duties were performed and in respect of which no wages were paid). The claimants appealed to the Commissioners on the ground that regulation 51(2)(c) gave rise to indirect discrimination on grounds of sex, contrary to Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

Held, allowing the appeal in CJSA/5732/1999 but dismissing the appeals in CJSA/5836/1999 and CJSA/3444/2000, that:

regulation 51(2)(c) worked to the disadvantage of some of the claimants to whom it applied because they were treated as engaged in remunerative work for the whole year of the cycle of work when they would not be so treated if regulation 51(2)(b)(i) (which applied to all other claimants with cycles of work) were applied to them and, accepting a concession made by the Secretary of State, it operated to the disadvantage of disproportionately more women than men (paragraphs 9 and 12);

justification of that disproportionate effect was not made out by the Secretary of State, who had failed to establish that regulation 51(2)(c) was necessary in pursuit of a legitimate social policy, and regulation 51(2)(c) was therefore inconsistent with Council Directive 79/7/EEC (paragraph 20);

the Directive was to be given effect by regarding regulation 51(2)(c) as having no effect with the consequence that regulation 51(2)(b)(i) applied to the claimants' cases (paragraphs 23 and 24);

On the facts of the cases, the Tribunal of Commissioners held that the claimant in CJSA/5732/1999 was not engaged in remunerative work but that the claimants in CJSA/5836/1999 and CJSA/3444/2000 were engaged in remunerative work.

[Note: This case was determined at the same time as the case reported as R(JSA) 5/03.]

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

We allow the claimant's appeal in CJSA/5732/1999. We set aside the decision of the Sunderland social security appeal tribunal dated 16 December 1997 and we substitute our own decision which is that the claimant was not in remunerative work for the purposes of her claim for jobseeker's allowance made on 26 June 1997. We leave other questions arising on that claim to be determined by the Secretary of State but, in the event of any disagreement, the case must be restored before a Commissioner.

We dismiss the claimants' appeals in CJSA/5836/1999 and CJSA/3444/2000.

REASONS

Introduction

We held an oral hearing of these appeals. The appellant in CJSA/5732/99 neither appeared nor was represented. The appellant in CJSA/5836/99 was represented by Mr. Jake Harris of the Free Representation Unit. The appellant in CJSA/3444/00 was represented by Ms. Helen Mountfield of counsel, instructed by Mr. Stewart Wright of the Child Poverty Action Group. The Secretary of State was represented in all three appeals by Mr. Akhlaq Choudhury of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.

The appeals were heard together because they all raise the question whether regulation 51(2)(c) of the Jobseeker's Allowance Regulations 1996 gives rise to indirect discrimination on grounds of sex, contrary to Council Directive 79/7/EEC.

The legislation

Jobseeker's allowance was introduced with effect from 7 October 1996 when the Jobseekers Act 1995 came into force. As originally enacted, section 1 of the Act provided:

"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;

(i) is in Great Britain."

Section 2 provides for the contribution-based conditions, which include not having earnings in excess of a prescribed amount. The prescribed amount is calculated under regulation 56 of the Jobseeker's Allowance Regulations 1996 which has the practical effect that the claimant's earnings, before any element is disregarded under regulation 99(2) or 101(2) and Schedule 6, must be less than the amount of contribution-based jobseeker's allowance to which he or she might be entitled. Section 3 provides for the income-based conditions, which include having an income (from all sources and not just earnings) which does not exceed the applicable amount. The applicable amount is calculated under regulation 83 and is intended to take into account the needs of the claimant's family. Section 4 makes provision for the amount payable by way of jobseeker's allowance and has the effect that entitlement to contribution-based jobseeker's allowance is reduced by the amount of any earnings that do not disentitle the claimant altogether under section 2 and that entitlement to income-based jobseeker's allowance is reduced by the amount of any income that is not sufficient to disentitle the claimant altogether under section 3.

Jobseeker's allowance replaces unemployment benefit, which was based on contributions, and also income support for those people who were formerly required to be available for work as a condition of entitlement to income support. There are, however, as Mr. Choudhury emphasised, important differences between jobseeker's allowance and the benefits they replaced, notably the fact that contribution-based jobseeker's allowance is a weekly benefit, whereas unemployment benefit was a daily benefit, and the introduction of the concept of a jobseeker's agreement.

The present appeals turn on the scope of the term "remunerative work" in section 1(2)(e). At the time with which we are concerned, regulation 51(1) and (2) of the Jobseeker's Allowance Regulations 1996 provided –

"(1) For the purposes of the Act "remunerative work" means–

(a) in the case of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week; and

(b) in the case of any partner of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 24 hours per week; and

(c) in the case of a non-dependant, or of a child or young person to whom paragraph 18 of Schedule 6 refers, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week,

and for those purposes, "work" is work for which payment is made or which is done in expectation of payment.

(2) For the purposes of paragraph (1), the number of hours in which the claimant or his partner is engaged in work shall be determined–

(a) where no recognisable cycle has been established in respect of a person's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;

(b) where the number of hours for which he is engaged fluctuate, by reference to the average of hours worked over–

(i) if there is a recognisable cycle of work, and sub-paragraph (c) does not apply, the period of one complete cycle (including, where the cycle involves periods in which the person does not work, those periods but disregarding any other absences);

(ii) in any other case, the period of five weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person's average hours of work to be determined more accurately;

(c) where the person works at a school or other educational establishment or at some other place of employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work, by disregarding those periods and any other periods in which he is not required to work."

Regulation 52(1) provided:

"(1) 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."

Where a claimant has a cycle of work and the number of hours for which he or she works falls to be calculated under regulation 51(2)(b)(i), the calculation takes account of the hours worked over the whole cycle, including periods of no work. A determination that he or she is engaged in remunerative work also applies for the whole period of the cycle, including such periods of no work (R(IS) 8/95), although a person may temporarily cease to be engaged in employment when absent from work in circumstances where regulation 52(1) does not apply. However, where the cycle of work consists of a year and includes school holidays or similar vacations, the Regulations provide that regulation 51(2)(c) should apply in place of regulation 51(2)(b)(i) and that the periods of school holidays or similar vacations should be disregarded in the calculation. In Banks v. Chief Adjudication Officer [2001] UKHL 33, [2001] 1 WLR 1411 (also reported as R(IS) 15/01), there arose the question as to the period for which a determination under regulation 51(2)(c) applied in the case of a school classroom assistant who worked for more than 16 hours per week during school terms but was not paid in respect of school holidays. Mr. Commissioner Rowland, accepting a concession by the adjudication officer that the claimant was entitled to benefit during school holidays, held that regulation 51(2)(c) operated so that the claimant was to be regarded as engaged in remunerative work only during the school terms taken into account in calculating the average number of hours worked. However, after Mr. Commissioner May QC had declined in CSJSA/395/98 to accept the same concession, the Chief Adjudication Officer appealed against Mr. Commissioner Rowland's decision. The Court of Appeal allowed the appeal and the claimant appealed to the House of Lords. By a majority, their Lordships held that the claimant was to be treated as being in remunerative work over the whole cycle of work, including the school holidays.

Discrimination

On this approach, regulation 51(2)(c) works to the disadvantage of some of those claimants to whom it applies. They are treated as engaged in remunerative work for the whole year of a cycle of work when they would not be so treated if regulation 51(2)(b)(i), which applies to all other claimants with cycles of work, were applied to them. Whereas regulation 51(2)(b)(i) produces a true average, regulation 51(2)(c) produces a false average because it ignores the fact that for part of the cycle the claimant does no work.

The claimants argue that disadvantaging those claimants to whom regulation 51(2)(c) applies contravenes Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. They submit that regulation 51(2)(c) should be given the interpretation rejected by the House of Lords in order to make the regulation comply with the Directive. It is common ground before us that jobseeker's allowance falls within the scope of the Directive.

Article 4(1) of the Directive provides:

"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 Nolte v. Landesversicherungsanstalt Hannover (Case C-317/93) [1995] ECR I-4625, it was held by the European Court of Justice, at paragraph 28 of their judgment, that:

" … Article 4(1) of the directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so."

On the basis of that authority, Mr. Choudhury accepts that, although regulation 51(2)(c) is an apparently neutral provision, it does not follow that it cannot give rise to discrimination on grounds of sex. It is necessary to consider whether it works to the disadvantage of far more women than men and, if so, whether it can nonetheless be justified. Ms. Mountfield cited a number of other authorities to us but it is not necessary for us to consider the refinements she suggested to the test enunciated in Nolte.