Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee took note of the information supplied by the Government in 2000 and 2001 in the reports on the Convention, as well as in its annual reports on the application of the European Code of Social Security, which have provided replies on a number of points raised in its previous comments. It has also noted the Government’s explanations concerning the new social security measures introduced by the Health Act, 1999, the Welfare Reform and Pensions Act, 1999, the Child Support, Pensions and Social Security Act, 2000, and the Health and Social Care Reform Act, 2002. The Committee would like the Government to provide additional information on the following points.

Part IV (Unemployment benefit). 1. Article 22 (in relation to Articles 66 and 67). With reference to its previous observation of 1998, the Committee notes that the great majority of claimants of unemployment benefit receive the income-based Jobseekers’ Allowance (JSA), the level of which is far greater than the replacement level established by the Convention, while only 14 per cent of the claimants receive the contribution-based JSA, which does not attain this level. In order to better appraise the situation, the Committee would like the Government to supply the information requested under Article 76, Title IV, of the report form for the Convention, indicating in particular, with respect to conditions of entitlement to the income-based JSA mentioned in section 3(1)(a) and (e) of the Jobseekers’ Act, how the "applicable amount" is determined in view of the requirements of Article 67(b) of the Convention, and how protection is ensured to a claimant whose partner, while working 24 hours a week or more, receives wages insufficient to maintain the couple "in health and decency", as required by Article 67(c) of the Convention. As regards the contribution-based JSA, the Committee notes that from April 2002 its rate for persons aged 25 or over has been increased from £53.05 to £53.95. It would like the Government to continue to supply information on the measures taken to increase the level of the contribution-based JSA at least to the minimum replacement level calculated in accordance with Article 66 of the Convention. Please indicate also the number of persons receiving the income-based JSA and the contribution-based JSA in comparison with the total number of unemployed in the country.

2. Misconduct. With reference to its observation, the Committee recalls that paragraph 39108 of the Adjudication Officer’s Guide (AOG) contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes that in the new wording of paragraph 34108 of the Decision Makers Guide (DMG), which has replaced paragraph 39108 of the AOG, this general guidance has been deleted and replaced by the provision stipulating that "an act or omission by a claimant which could have been avoided can be misconduct". To ascertain it, in the practical example of lateness for work, "the test is whether the lateness was preventable, or whether there was a failure on the part of the claimant to take care to attend at the proper time. Lateness which is outside the claimant’s control does not amount to misconduct. Lateness which results from a lack of care to take steps which would ensure attendance at the proper time does amount to misconduct." It appears from the new wording of this paragraph that the question of whether the claimant’s wrongdoing was deliberate, and therefore amounted to wilful misconduct sanctioned under the Convention, is substituted by the question of whether, in fact, it was preventable by the claimant by taking due care. The Committee observes in this respect that while prevention, by definition, will always constitute deliberate and wilful behaviour, failure to prevent wrongdoing, as well as failure to take due care, might not necessarily be wilful. For example, lateness which was caused by the unforeseen difficulty in finding the address of a new place of work, the location of which may have been poorly explained by the employer, could in principle have been prevented had the claimant taken care to give himself more travel time, but in no case such lateness would amount to deliberate misconduct. Similarly, in the logic of paragraph 34117 of the DMG, the situation where the claimant "reasonably, but mistakenly, believed" that the new place of work was situated at another address, would not be wilful misconduct, even though he might have taken additional care to double check the accurateness of the address, whereas the situation where the claimant "wilfully disobeyed a reasonable order by an employer or other supervisor (to come to the new place of work at a certain time), this will usually be misconduct." These examples of contradictory decisions which may be taken in application of guidance contained in paragraphs 34108 and 34117 considering preventable but non-deliberate lateness as misconduct in the first case and as not misconduct in the second case, show that the test of preventability linked to the duty of care is but another method used in the DMG to determine the degree of negligence or carelessness at which even non-deliberate wrongdoing could be considered as misconduct. "Whether negligence or carelessness is misconduct is a matter of degree - instructs the decision maker paragraph 34149 of the DMG, - if it was deliberate it is misconduct. Otherwise it depends on: (1) the responsibility, care and skill expected in the job; and (2) the seriousness of the act or omission; and (3) the extent of the claimant’s blame." The Committee observes that while the DMG in many instances draws a clear distinction between deliberate and non-deliberate misconduct of the claimant, such as negligence and carelessness, it nevertheless requires the decision-makers to apply sanctions equally in those cases where misconduct, in fact, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It is in judging this otherwise non-deliberate behaviour of the claimant as "particularly careless" to the extent that it can be considered deliberate, as explained by the Government in relation to the example in paragraph 34109 of the DMG, that the decision-makers face the risk of sanctioning with equally fervent behaviour which, although faulty for the purpose of termination of employment relations by the employer, may not amount to "wilful misconduct" for the purpose of the suspension of the unemployment benefit by the public authority responsible for provision of protection against unemployment on conditions laid down by the Convention. The Committee considers that such risk could be avoided if the decision-makers, in judging misconduct by such criteria as negligence, carelessness or preventability, would first of all be required to establish the deliberate (wilful) character of the claimant’s wrongdoing, so as to distinguish, as was the very purpose of the modification of paragraph 34108 of the DMG in the Government’s wording, the "circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care". It therefore once again expresses the hope that the Government will give further consideration to clarifying the wording of the relevant paragraphs of the DMG, so as to limit the resulting decisions of suspension of unemployment benefit only to cases of misconduct constituting wilfulness, as provided for by Article 69(f) of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government’s attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In its latest reports, the Government continues to use for benefit calculation this now largely obsolete and fictitious minimum wage, which amounted to £165.59 per week in 2000 and to £171.22 in 2001. It indicates however that, since 1 April 1999, the national minimum wage was introduced, which for workers aged 22 or over corresponded from 1 October 2000 to £144.30 and from 1 October 2001 to £159.90. It appears from comparing these figures that this real national minimum wage is quickly closing up on the fictitious reference minimum wage of the engineering labourer, the difference in fact decreasing from £21.29 in 2000 to only £11.32 in 2001. On the other side, the fictitious reference wage is increasingly falling behind real average wages of men in manufacturing, which grew from £441.70 in April 2000 to £463.90 in April 2001, according to the ILO Bulletin of Labour Statistics 2002-03 (page 139). In the light of these trends, where the reference wage moves towards the lowest reference point provided by the national minimum wage and away from the average earnings in the industry in question, its further use might give an increasingly distorted picture of reality for the purpose of establishing international comparisons of the replacement levels provided by the United Kingdom’s social security benefits in relation to the minimums fixed by the Convention. It becomes evident already in comparing the situation of the United Kingdom to that of the Isle of Man where the JSA scheme and the amounts payable are the same but the reference wage is much higher as it represents not the minimum but the average wage of the ordinary adult general labourer (£219.30 for a 37-hour week from 1 September 2000). The Committee wishes to point out that such comparisons of the level of countries’ compliance with the minimums fixed by Article 66 of the Convention will be meaningful only if the reference wage used is equal to the wage of an ordinary adult male labourer selected in accordance with paragraph 4 or 5 of this Article. Moreover, this wage shall be recalculated anew each time the Government is called to provide updated statistics on the level of the benefits, that is every five years when it is submitting a detailed report on the application of the Convention. Thus, if the Government wishes to continue to select an ordinary adult male labourer from the mechanical engineering industry in accordance with paragraph 4(a) of Article 66, it has to determine the wage of the engineering labourer, averaged for different regions, on the basis of the currently applicable rates of wages for normal hours of work fixed by collective agreements, regulations or custom, including cost-of-living allowances, as stipulated in paragraph 7 of this Article. According to Title I under Article 66 of the report form on the Convention, the data shall be given for the same time basis (month, year) as used for calculating the benefit and the family allowance and for which the most recent statistics are available within the period covered by the report. These very precise requirements of the Convention make it clear that the reference wage of an ordinary adult male engineering labourer calculated for the year 2001, for example, might not necessarily coincide with the adjusted minimum wage in mechanical engineering established 15 years ago, or, for that matter, with any other minimum wage established at the industry or national level. The Committee is therefore bound to conclude that the method presently used by the Government for determining the reference wage provides only an approximation which does not allow to clearly ascertain whether the rate of the benefit for a standard beneficiary attains the level prescribed by the Convention. In the light of these explanations, it would like the Government to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention and to base the calculation of the benefits’ level in its next report on the reference wage of a standard beneficiary established according to one of the methods offered by the Convention.