Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Social Security (Minimum Standards) Convention, 1952 (No. 102) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1954)

With reference to its previous comments, the Committee notes the information provided by the Government in reply to the questions raised in its direct request of 1997, in particular concerning Part XII of the Convention, as well as statistics on the amount of the old-age benefit (Part V) for a standard beneficiary.

Part III (Sickness benefit) of the Convention. The Committee notes from the Government's reply to its direct request of 1997 that few employers have yet taken up the option available since April 1997 not to operate the Statutory Sick Pay scheme because it would mean changing their payroll systems. It hopes that the Government would continue in its future reports to provide information on any developments in this respect.

Part IV (Unemployment benefit) of the Convention, Articles 20 and 24 (in relation to Article 69). 1. Suitable employment. In previous comments the Committee noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept to which Article 20 of the Convention refers) was replaced by the apparently more restrictive concept of disqualifying a person for refusing employment notified by the employment service "without good cause", which was carried forward into the jobseekers' legislation (section 19(6)(c) of the Jobseekers Act 1995). In view of the fact that unemployed persons are authorized during a limited period of one to 13 weeks to refuse to seek or accept any employment which does not correspond to their usual occupation and for which the level of remuneration is lower than they are accustomed to receiving (section 6(5) of the Act and Regulation 16 of the Jobseeker's Allowance Regulations 1996), the Committee expressed the hope that the Government would indicate the measures taken or contemplated to ensure that, in all cases covered by Article 20 of the Convention (in relation to Article 69), unemployment benefit is paid at least during the minimum period of 13 weeks within a period of 12 months or in each case of suspension of earnings, in accordance with Article 24 of the Convention.

In the report on Convention No. 44, the Government assures the Committee that there is no question of the jobseeker's allowance being withheld unreasonably. The Employment Service acts responsibly, and does not set out to offer people obviously inappropriate jobs; the issue of the "suitability" of an employment offer would also have to be taken into account in establishing whether a refusal of such offer was without good cause. In that respect, the Government believes that newly unemployed people should be given a reasonable chance of returning to their former type of work and rate of pay. There is therefore a "permitted period" from one to 13 weeks during which they can refuse other types of work and work which pays less than they used to receive. According to Regulation 16(2), in determining the length of a permitted period, an adjudication officer must take into account the jobseeker's usual occupation and any relevant skills or qualifications which he has, the length of the period during which he has undergone training relevant to that occupation, the length of the period during which he has been employed in that occupation and the period since he was so employed, and the availability and location of employment in that occupation. A claimant whose previous "usual occupation" had been of only short duration has a comparatively precarious connection with the labour market, and it would not be in his own interest to hold out for 13 weeks for an occupation and rate of pay which in the reality of his circumstances will become unattainable after a significantly shorter time. It is therefore appropriate that the length of a permitted period should continue to be determined by an independent adjudication officer. Furthermore, the Government refers to other possibilities for a jobseeker to restrict his availability for employment outside the permitted period providing he has reasonable prospects of securing employment notwithstanding those restrictions in the light in particular of his skills, qualifications and experience, the type and number of vacancies within daily travelling distance from his home and the length of time for which he has been unemployed (Regulations 8, 9 and 10). The Government believes that these safeguards offer adequate protection to claimants. It also states that while records are not kept on the number of claimants with a permitted period of less than 13 weeks, it is unlikely to be many.

The Committee notes this information with interest. It observes in particular that, in relation to the notion of "suitable employment" referred to in Article 20 of the Convention, the possibility, under the permitted period of up to 13 weeks provided for in Regulation 16 of the Jobseeker's Allowance Regulations 1996 for a jobseeker to restrict his availability for employment to his "usual occupation" with the same level of remuneration ensures during this period a sufficient degree of protection to the person concerned. The criteria taken into consideration under Regulation 16(2) in the determination by an adjudication officer of the duration of the permitted period are in line with those normally used in assessing the suitability of employment. Moreover, after the permitted period and until the expiration of six months from the date of claim, jobseekers may also restrict their availability for employment by placing restriction in particular on the level of remuneration, providing they can show that they have reasonable prospects for securing employment notwithstanding those restrictions (Regulations 8 and 9). The Committee notes however that the decisions concerning the duration of the permitted period, as well as the employability of a jobseeker in the light of the restrictions made, are placed under the responsibility of adjudication officers, who thus have broad discretion. It would therefore like to be informed on whether new guidelines have been drawn up for the adjudication officers since the entry into force of the jobseekers' legislation on the above-mentioned matters (availability for employment). If so, it would like the Government to supply a copy of such guidelines, as well as to provide statistics on the number of jobseekers to whom a permitted period was granted in relation to the total number of newly unemployed. Furthermore, in view of the Government's statement under Convention No. 44 that the Employment Service does not offer people inappropriate jobs, the Committee would like the Government to indicate in its next report the criteria taken into consideration by the Employment Service in making concrete offers of employment to the jobseekers concerned.

2. Actively seeking employment. The Committee recalls that in the year to 31 March 1995 the number of disallowances pronounced by adjudication officers for failure to seek work actively was 21,460, which, according to the Government, was a comparatively modest figure taking into account that it constituted less than 1 per cent of the overall level of claimant unemployment in the year in question and that a claimant could incur more than one adverse decision in a year. It notes, however, that in the subsequent periods the number of adverse decisions on the actively seeking employment question has increased substantially to attain 32,274 in 1996-97 and 63,336 in 1997-98. According to the Government, the rise can be explained by the fact that jobseekers should now be interviewed about their job search activity each time they attend, which has increased the likelihood that instances of apparently insufficient job search are identified and submitted to adjudication. In addition, in 1997-98 the proposed terms of 3,538 jobseeker's agreements were also referred to adjudication. The Committee would like the Government to continue to supply updated statistical information on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons in comparison with the total number of jobseekers, as well as on the number of appeals lodged against the adverse decisions of adjudication officers and their outcome.

3. The Committee recalls that in the comments of November 1996 the Trades Union Congress drew attention to the possible inconsistency between the incapacity for the work test adopted in 1995 and the availability for the employment test under the Jobseekers Act, indicating that "disabled people are increasingly concerned that they will fall between a tighter incapacity test, which denies them Incapacity Benefit, and inability to meet the terms of the new availability for the work test in JSA". The TUC mentioned in particular three categories of people which may be affected: (i) those with conditions not recognized by the Incapacity Benefit test of incapacity; (ii) those with conditions which are not in any way incapacitating, but which do lead to their placing restrictions on their availability -- someone with sickle cell anaemia, for instance, should not be required to be available for work in cold, wet conditions, as this could bring on a crisis; (iii) people with mental health problems which may make them seem reluctant to apply for jobs, and thus not be available for work. In its reply of 5 December 1996, the Government stated that an Incapacity Benefit decision that someone is capable of work automatically applies to JSA. There is therefore no possibility that people can fail to qualify for both benefits on capacity grounds. Moreover, JSA legislation specifically provides that jobseekers may restrict their availability to certain types of employment provided that the restrictions are reasonable in the light of their physical or mental condition. The Committee takes note of this information.

4. Misconduct. In its previous comments in connection with the observations formulated by the TUC in 1995 and 1996, the Committee raised a number of questions concerning the provisions of the social security legislation authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by the wilful misconduct. The Committee notes from the Government's report that the provisions in question have been carried over to the Jobseekers Act and are now incorporated in section 19(1), (3) and (6)(a) of this Act prescribing suspension of benefit from one up to 26 weeks where the claimant has lost his employment as an employed earner through misconduct, the actual period in each case being at the discretion of the adjudication officer, who makes the decision in accordance with Regulation 70 of the Jobseeker's Allowance Regulations 1996 and the relevant adjudication officers' guidance on the interpretation of misconduct ("Employment lost through misconduct AOG 39060-39219. Vol. 6, Amendment 5, January 98"), a copy of which was supplied by the Government.

As regards the interpretation of "misconduct", the Government confirms that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. In the Government's view, in this context "misconduct" will always in effect amount to wilful misconduct and will not include, within the meaning of section 19 of the Act, certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. Stating that in practice no distinction can be drawn between "misconduct" and "wilful misconduct", and that the question of whether an employee has received a warning prior to dismissal is irrelevant, the Government refers to the attached guidance for the adjudication officers on the interpretation of misconduct.

According to this guidance, the adjudication officer decides what is misconduct (39075). The word "misconduct" is not defined in social security legislation, but taking into account the relationship of employer and employee and rights and duties of both, misconduct must be conduct that can fairly be described as blameworthy and wrong (39105). The adjudicating authorities also decide whether the claimant's actions are misconduct (39109). Even when claimants have not deliberately done anything wrong, this can still amount to misconduct. For example, claimants who were accidentally late for work may well be guilty of misconduct, even if there was no deliberate intention to be late (39108). Furthermore, it does not matter that the employer has not described the claimant's actions as misconduct. For example, an employee would have lost his employment through misconduct if it becomes clear that he had been particularly careless (39109). Whether negligence or carelessness is misconduct is a matter of degree. If it was deliberate it is misconduct, but otherwise it depends on the responsibility, care and skill expected in the job, and the seriousness of the act or omission, and the extent of the claimant's blame to be established by the adjudication officer (39149). Besides insolence, quarrelling, sculling or fighting and other forms of offensive behaviour which are misconduct (39178), the use of bad language may also be misconduct, particularly when it is used in circumstances when it is known, or might be expected, to give offence to others (39179).

The Committee observes that the interpretation of "misconduct", within the meaning of section 19 of the Jobseekers Act, given by the above-mentioned guidance, draws a clear distinction, illustrated with concrete practical examples, between deliberate (wilful) and non-deliberate misconduct of the claimant, such as negligence and carelessness, which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It also observes that said guidance obliges the adjudication officers to apply sanctions equally in cases where misconduct was not in fact wilful misconduct, leaving the determination of the severity of the sanction imposed at their discretion. The Committee notes however the Government's statement that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. It therefore hopes that in the light of this statement the Government will reconsider the matter and will modify the adjudication officers' guidance, so as to ensure that suspension of unemployment benefit is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention.

The Committee further notes that, under section 19(1), (2) and (5)(c) of the Jobseekers Act, suspension of benefit is also prescribed in circumstances where the claimant has lost his place on a training scheme or employment programme through misconduct, the duration of sanction in this case being fixed by Regulation 69 of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to specify whether the same rules for determining what is misconduct are applied in this case, taking into account that the above-mentioned guidance covers loss of employment and does not deal with situations where misconduct has led to loss of a place on a training scheme or employment programme. If not, please indicate whether a special guidance exists for such cases and supply a copy of it.

Finally, in relation with the TUC's comments, the Committee notes with interest the statement by the Government that payment of benefit is no longer suspended while a case of misconduct is under consideration. If it appears that a claimant may have lost his employment through misconduct, payment of the jobseeker's allowance continues in full until an adjudication officer determines the question. The Committee would like the Government to supply a copy of the provision establishing this rule.

5. The Committee notes that, according to sections 1(a) and 4(1)(a) of the Social Security Act, 1998, the functions of adjudication officers are now transferred to the Secretary of State and the functions of social security appeal tribunals are transferred to unified appeal tribunals constituted under this Act. Under section 8(1)(a) and (c) of this Act, it shall be for the Secretary of State to decide any claim for a relevant benefit which includes a jobseeker's allowance. Regulations to be adopted under sections 21 to 23 of the Act may further provide for suspending payments of a relevant benefit, in whole or in part, in prescribed circumstances as well as for failure to furnish information. Finally, under section 81 of the Act, the Secretary of State shall prepare and lay before each House of Parliament a report on the standards achieved by him in the making of decisions against which an appeal lies to an appeal tribunal. The Committee would like the Government to explain the implications that these new arrangements might have on the consideration of the claims for jobseeker's allowance and to supply a copy of the Regulations to be adopted under the Act as well as a copy of the above-mentioned report of the Secretary of State, once these documents are available.

Article 24, paragraph 3. The Committee notes that Regulation 46(2) of the Jobseeker's Allowance Regulations specifies that the number of waiting days is three, but that, according to the Government's report this number was increased to seven by section 2 of the Jobseeker's Allowance (Amendment) Regulations, 1998 (No. 71), which however were revoked on 1 June 1998 by the Social Security (Miscellaneous Amendments) (No. 4) Regulations, 1998 (SI 1998, No. 1174). The Committee would like to receive a copy of these later Regulations. It would also like the Government to indicate, with reference to corresponding provisions, how the term "day" is defined for the purposes of Regulation 46(2) and, in particular, whether the provisions of Regulation 47(4), as amended by section 14 of the Jobseeker's Allowance and Income Support (General) (Amendement) Regulations, 1996, No. 1517, are applicable in this case.

Part X (Survivors' benefit). In view of the concern of the TUC that the Government may intend to abolish social insurance survivors' benefits, the Committee would like the Government to state its position in this respect in the light of the corresponding provisions of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). With reference to its direct request of 1996, the Committee notes the information on the method of uprating the nationally negotiated minimum wage of an engineering labourer for the year 1987 which is used by the Government to determine the reference wage of an ordinary adult male labourer for the purpose of calculating the level of periodical benefits. It recalls that comparing the current rate of benefit to the now largely obsolete minimum wage of 1987, adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period, would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. The Committee notes however that in its report on Convention No. 44 the Government expresses the intention to introduce a national minimum wage as soon as convenient. It would like the Government to keep it informed on any progress achieved in this respect.

[The Government is requested to report in detail in 2000.]