PLH                                                                         Commissioner's File:  CJSA  3239/99

JOBSEEKERS ALLOWANCE ACT 1995
SOCIAL SECURITY ACT 1998

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]

1.	My decision is that the decision of the social security appeal tribunal given on 16 March 1999 on this claim for jobseeker’s allowance by a supply teacher during the Easter school holiday was correct in law on the main issue on which they decided the case against her, namely that she fell to be treated as engaged in remunerative work for this period as it was a recognised, customary or other holiday under reg. 52 Jobseeker’s Allowance Regulations 1996 SI No. 207.  
2.	That provides a complete answer to her claim, and accordingly it is not necessary to go on and consider the alternative ground on which the tribunal decided the case against her on the facts, as regards which the appeal is supported on the ground that this arose only at the hearing and the claimant, who was not present, did not have an adequate opportunity of dealing with it.  I note however that having been given such an opportunity in the course of these appeal proceedings by a direction given by another Commissioner, she has not in fact taken it up by providing any evidence to show that the tribunal’s factual findings were misplaced: but in any event on the view I take of the main issue of law that can make no difference to the outcome of the case, and accordingly her appeal against the tribunal’s finding that she was not entitled to jobseeker’s allowance for the relevant holiday period is simply dismissed.
3.	I held an oral hearing of this appeal which had been requested on behalf of the claimant.  Mr. Edmund Hikins who has throughout acted as the claimant’s friend and adviser in these proceedings appeared on her behalf and the Secretary of State was represented by Huw James, solicitor.
4.	The claimant is a lady now aged 40 who is a teacher.  At the time of her jobseeker’s allowance claim on 7 April 1998 she had been working as a supply teacher on a day to day basis in a primary school in Middlesborough, covering for a permanent teacher who was then on maternity leave.  The conditions of employment applicable to her and other teachers engaged on a similar basis by the education authority were in evidence before the tribunal, and make it clear that the legal employment relationship of such teachers is precarious in the extreme.  In particular, as Mr. Hikins pointed out, it amounts to casual labour of the most old-fashioned kind, on which he said education authorities are being required to place grossly excessive reliance to the detriment of teachers and education standards alike.  
5.	In particular, he pointed to a provision about “Period of notice and termination of contract” in the standard conditions reproduced at page 31 of the appeal file, making it clear that:  
“Employment of a casual supply teacher is temporary and on a day to day basis.  Employment is terminable without notice at any time and in any event would terminate at the end of the school term.”  
The previous paragraph makes it clear that the only remuneration for teachers engaged on this basis is a daily rate of 1/195th of the normal teacher’s annual salary scale, with no entitlement to either employment or pay in respect of school holidays or days not actually worked through illness or any other cause whatsoever.  I interpose that as I understand it, 195 would approximate to the normal number of school days a fully employed teacher would be expected to be working annually during term time, so that the daily rate for supply teachers includes some allowance for the loss of normal paid holidays. But I agree with Mr. Hikins that this is a far from ideal position for a teacher to be in, certainly if made to work as a “supply teacher” on a regular basis, or over a substantial length of time, instead of being properly appointed to do the same job.
6.	On the basis of those conditions which were not in dispute, it is clear that the claimant ceased to be in any formal employment relationship with the education authority when the school in which she had been teaching broke up for the Easter holidays on Friday 3 April 1998. Thus she was not in any sense a contractual employee of theirs for the period of her jobseeker’s allowance claim from the following Monday.  However it is also clear from the evidence before the tribunal that because the permanent teacher for whom she was covering would not be returning from maternity leave before July, the actual arrangement was that the claimant would in fact be returning to the same primary school to carry on teaching the children on a regular basis as soon as the Easter holidays were over, that is from 20 April 1998 onwards, and that had been agreed before the end of the previous term:  see the head teacher’s letter in response to a departmental inquiry in September 1998 at page 36.  Thus although there may have been no contractual entitlement on either side to insist that she should resume her duties as a teacher on the first day of the next term, the common expectation was that she would; and this was what in fact happened. 
7.	In those circumstances, the tribunal upheld the adjudication officer’s rejection of her claim for jobseeker’s allowance for the period of the Easter school holiday from 6 to 19 April 1998 inclusive, on the ground that she fell to be treated as engaged in remunerative work during this period as a “recognised, customary or other holiday” to which regulation 52 cited above was applicable in respect of her.  In so holding, the tribunal applied the long-established principle laid down in the decision of a Tribunal of Commissioners in decision R(U)1/62 that a person, even a casual employee with no continuing employment contract, is to be treated as absent from work by reason of a recognised, customary or other holiday so long as there is a common intention that the employment in which he or she was engaged before the holiday will be resumed on the next available opportunity once the holiday is over.  They rejected the argument, put before them in the very full and detailed submissions made in writing by Mr. Hikins, that this principle should be ignored and that instead the continued existence or otherwise of a legal employment relationship should be made the sole criterion, as had apparently been accepted by the single Commissioner in case R(U)2/87.  
8.	As the appeal tribunal in this case pointed out, the result apparently reached in that case (which concerned a supply teacher, albeit on differently worded regulations) was really irreconcilable with the principle laid down in the Tribunal of Commissioners’ decision in 1962; and that decision had been approved and confirmed in further decisions of Tribunals of Commissioners in R(U)18/64 and importantly R(U)4/88 which had expressly concerned the principle as binding and had been given after the decision in R(U)2/87.
9.	Before me Mr. Hikins renewed his arguments based on decision R(U)2/87 and said that the facts were closer to those of the present case; but while sympathising with his point about the excessive reliance of education authorities on supply teachers employed on a repeated or regular basis, I cannot accept his submission that the tribunal in this case were wrong to adhere to the principle consistently laid down and applied in the superior authorities, which in my view remain binding on me as well as on the appeal tribunal.  I do find it puzzling, and if I may say so regrettable, that the strongly constituted Tribunal of Commissioners in case R(U)4/88 which reaffirmed the principle as applicable to teachers not working in the school holidays did not take the opportunity to clarify the status of decision R(U)2/87, reported as it is only some 50 pages earlier in the same volume of the reports.  Not only do they not do so: they do not even mention the existence of that case.  
10.	For my part I consider it is extremely doubtful whether the decision of the single Commissioner in RU)2/87 can stand as good authority at all in the face of the earlier authorities (which it in turn failed to mention), even where the relevant regulations include the phrase particularly founded on in that case, referring to the claimant’s employment as not having been “terminated”.  But at all events Mr. James must in my view be right in his submission that it can have no application to override the general principle where the provisions in point do not contain that phrase, as regs. 51 and 52 of the Jobseeker’s Allowance Regulations do not.  
11.	Regulation 51 provides simply that “remunerative work” for the purposes of the Act is to mean work in which a claimant is engaged, or engaged on average, for not less than 16 hours per week.  It is common ground at the provisions of Reg. 51(2) referring to a “cycle of work” do not apply to a supply teacher employed for less than a year, and there is no dispute that the claimant’s employment as a supply teacher in the weeks immediately before and immediately after the Easter holiday counted as “remunerative work” as so defined. Everything therefore turns on the provisions of regulation 52(1) which so far as material prescribe that: 
 “… 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 … by reason of a recognised, customary or other holiday.”  
12.	On the facts of this case, the tribunal’s conclusion that the claimant was caught by this provision for the period of the Easter holiday from 6 to 19 April 1998 was in my judgment inescapably correct for the reasons they gave.  The claimant was away from her work as a primary supply teacher for this period because her school and all the other schools were shut for the customary Easter holiday which applied to her as a supply teacher just as much as to all the other teachers.  Her own jobseeker’s agreement and jobseeker’s allowance claim form had made it clear that her work was as a primary school teacher and this was the only form of employment she was looking for.  Of course, as the tribunal pointed out, the position would have been different if she had ceased to be in that line of work altogether at the end of the Easter term when she claimed jobseeker’s allowance; but that was not the case.  In my judgment the tribunal were correct both in law and in fact in concluding that the reason the claimant was not in remunerative work as a primary supply teacher during the period of her claim was that both she and the children she was teaching were on holiday for Easter, and that this counted for her as a period of absence from work to which reg. 52(1) of the jobseeker’s allowance regulations applied.  
13.	For that reason, this appeal against the tribunal’s decision confirming the rejection of her claim for jobseeker’s allowance is dismissed and it is not necessary for me to express a concluded view on the alternative ground the tribunal gave for their decision, namely that they were not satisfied that the claimant had shown she was actively seeking work over the two-week holiday period itself.  On the material actually before the tribunal, which showed that the only work the claimant was interested in taking up was that of a primary teacher (by definition unlikely to be available over this period) and included no evidence whatever to show any willingness or attempt on her part to obtain any other form of employment that might have been available during the period, this alternative ground for their decision would I think have been justified. However as it is conceded that the claimant may not have had a proper opportunity of addressing the factual issues involved, I say no more about that question: it is immaterial in view of my conclusion on the major issue.  
14.	The original notice of appeal and supporting grounds at pages 83 to 94 of the appeal file also raised the contention of a breach of natural justice in the tribunal having gone ahead with the hearing, when the claimant and her representative had been unable to attend because of the expense and the date chosen.  Mr. Hikins did not seek to pursue that point at the hearing before me, but insofar as it remains formally a ground for this appeal I reject it. The claimant and Mr. Hikins as her representative had, and availed themselves of, ample opportunity to make full submissions in writing on the point of law about the position of supply teachers in the period of a school holiday between two terms of engagement, which was the determinative issue in the case; and those submissions were fully taken into account by the tribunal even though for the reasons I have given they were rightly not found persuasive.
15.	This appeal is accordingly dismissed.

(Signed)
P L Howell
Commissioner
18 December 2000