[2008] UKSSCSC CJSA_63 2007 (19 May 2008) 

CJSA/63/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Lincoln appeal tribunal dated 20 July 2006.

REASONS

2.	Section 19 of the Jobseekers Act 1995 has the effect that, among others, those who leave employment voluntarily without just cause may lose some payments of jobseeker’s allowance that they would otherwise have received, but section 20(3) enables special provision to be made in respect of those who leave employment during a trial period.

“19.– (1) Even though the conditions for entitlement to a jobseeker’s allowance are satisfied with respect to a person, the allowance shall not be payable in any of the circumstances mentioned in subsection (5) or (6).

…

(3)	If the circumstances are any of those mentioned in subsection (6), the period for which the allowance is not to be payable shall be such period (of at least one week but not more than 26 weeks) as may be determined by the Secretary of State.

…

(6)	The circumstances referred to in subsections (1) and (3) are that the claimant –
    (a)	has lost his employment as an employed earner through misconduct;
    (b)	has voluntarily left such employment without just cause;
    (c)	has, without good cause, after a situation in any employment has been notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him; or
    (d)	has, without good cause, neglected to avail himself of a reasonable opportunity of employment.

…

20.– …

(3)	Regulations shall make provision for the purpose of enabling any person of a prescribed description to accept any employed earner’s employment without falling within section 19(6)(b) or (d) should he leave that employment voluntarily and without just cause at any time during a trial period.

…”

3.	The claimant, a Fellow of the Chartered Institute of Management Consultants, had been a senior finance manager for twenty years when he was made redundant on 30 September 2005 and found himself, aged 59, out of work for the first time in over 43 years.  He describes himself as, emotionally, a broken man who could not bear the thought of being unemployed.  He claimed jobseeker’s allowance from 15 October 2005 but it is plain that he was keen to get back into work again and, on 1 November 2005, he started work for 20 hours a week as a control assistant with an ambulance service.  However, on 24 November 2005, he gave four weeks’ notice and indicated that he would welcome the ambulance service waiving the notice period, which it did in part.  He left the employment on 30 November 2005 and made a new claim for jobseeker’s allowance on 1 December 2005.  Jobseeker’s allowance was awarded and paid until 2 February 2006 but, on 31 January 2006, the Secretary of State superseded the award and decided that, under section 19(1), (3) and (6)(b), jobseeker’s allowance should not be paid for the period of six weeks from 3 February 2006 to 16 March 2006 because the claimant had voluntarily left his employment with the ambulance service without just cause.  The claimant appealed, but his appeal was dismissed by the appeal tribunal.  He now appeals against the appeal tribunal’s decision with the leave of a salaried chairman.

4.	The background to the decisions made by the Secretary of State and the tribunal need not be set out in full because the claimant has helpfully made clear that a number of points they considered are no longer in issue.

5.	The first point now reiterated by the claimant is that it had been a mistake to take the job with the ambulance service because it was so totally different from his previous employment.

“I could not adjust to the menial nature of the work.  It was boring and intellectually not challenging at all.  I was becoming brain dead.  If I had stayed there any longer there was a real risk that a patient may have suffered if I had made a mistake as my mind was not focused, in fact it was switched off.  The job was totally unsuitable for my mental ability and it was harming my mental health.” 

In the absence of any medical evidence, the tribunal did not accept that the claimant’s mental health was being harmed and it also did not accept that there was any risk to patients arising from the inattentiveness on the claimant’s part.  Those were issues of fact for the tribunal in respect of which the tribunal has recorded clear reasons and, as an appeal to a Commissioner lies only on a point of law and the findings are not inconsistent with the evidence, I cannot interfere with those findings.

6.	The claimant has also observed, correctly, that a person will have just cause in leaving employment that is beyond his or her mental capacity and he argues that that was the case here, albeit that in this case his mental capacity was, in conventional terms, higher than that required by the employment.  The tribunal was not impressed by that argument, taking the view that a repetitive job was likely to cause an employee’s mind to wander whatever their intelligence and that the claimant was in no different position from anyone else by virtue of his intellectual capacity.  In effect, it did not accept the claimant’s premise that the job was beyond his capacity.  That, again, was a view it was entitled to take.  Indeed, it is difficult to see how it could have reached any other conclusion.

7.	However, there are two aspects of the appeal tribunal’s decision in respect of which the claimant’s grounds of appeal do raise points of law.

8.	The first point of law arises from paragraph 12 of the tribunal’s statement of reasons, in which it is said –

“12.	The tribunal does not consider that the fact that the Claimant could have declined to take the job can amount to good [sic] cause.  The plain fact is that the Claimant did take the job and as a result the burden on the public purse was reduced.  That it needn’t have been reduced is not a reason for subsequently increasing that burden.”

The claimant argues that he should not be penalised as a result of taking a job he need not have taken in the first place.

9.	The second point of law arises from the tribunal’s approach to fixing the period of the sanction.

“15.	The maximum period of the sanction is 26 weeks and the minimum period is 1 week.  Those sanction periods exist both for voluntarily leaving a job and for failing to take up a training place or to apply for a job when the vacancy is notified by an employment officer.  Reasonably, the starting point for awarding a sanction in the case of a voluntary leaver should be higher than in the case of someone who fails to make an application or who fails to take up a training place.  That is because in the case of a voluntary leaver, the Claimant has a real job and not just a chance of obtaining one.

16.	In the present case the Claimant’s job was a permanent position, not merely in the sense of it lasting more than 26 weeks, but in the sense that it was as secure as any employment is likely to be in the modern economy.  The Claimant left after approximately a month during which he had performed only 4 days of normal duties.  He had not given the job really long enough.  These actions can be described as entirely self-interested.  Although the Claimant had made some efforts to secure another position via the Jobcentre Plus website and by reading newspapers, there was no suggestion that the Claimant was near to securing another position and indeed his lack of success should have indicated that his search for more congenial employment would be a difficult one.

17.	However, the position was only for 20 hours per week and there was no suggestion that those hours were likely to rise.  The pay was modest mainly because the position was not full time.  The Claimant clearly was deeply unhappy as he had realised that he made a mistake in taking the job. That unhappiness could be characterised as mental stress as opposed to a mental illness.  The Claimant had also worked for a long period without claiming Jobseeker’s Allowance or its predecessors.  

18.	The most significant mitigating factor seems to the tribunal to be that the Claimant was not entitled to take advantage of the trial period rules for Jobseeker’s allowance by reason of the technicality that he had not been unemployed for long enough.  If he had been able to take advantage of those provisions, he would have been entitled to leave this employment without the issue of a sanction arising.

19.	In the light of all of the circumstances the tribunal considers that a six week sanction is appropriate.”

The claimant argues that, if a sanction did have to be imposed (contrary to his argument on the first point of law) but it was only a technicality that prevented him relying upon the “trial period” provisions, the sanction should have been imposed for the minimum period of one week. 

10.	The “trial period” provisions the tribunal obviously had in mind are to be found in regulation 74(1) and (4) of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207), which is made under section 20(3) of the 1995 Act.  Regulation 74(1) and (4) provides –

“(1)	…, a person shall be of a prescribed description for the purposes of section 20(3) … (exemption from non-payment of jobseeker’s allowance) and shall not fall within section 19(6)(b) or (d) … if he has neither worked in employed earner’s employment, nor has been a self-employed earner, nor been a full-time student nor been in relevant education, during the period of 13 weeks preceding the day of the commencement of the employment.

…

(4)	A trial period in section 20(3) … means a period of 8 weeks beginning with the commencement of the fifth week of the employment in question and ending in the twelfth week of that employment and for the purposes of this definition in determining the time at which the fifth week of the employment in question commences or at which the twelfth week of that employment ends, any week in which a person has not worked in the employment for at least 16 hours shall be disregarded.”

11.	The effect of regulation 74 is that a person who falls within its scope is not liable to have a sanction imposed under section 19(6)(b) of the 1995 Act if he leaves voluntarily within the trial period.  The two points of law raised by the claimant raise questions as to how section 19(6)(b) of the 1995 Act is to be applied in a case where a claimant has taken employment for a trial period or as a stop-gap but his or her circumstances do not fall precisely within the scope of regulation 74(1) and (4).

12.	Regulation 74(1) and (4) is a re-enactment of provisions first enacted in a slightly different form in 1989.  Section 19(6)(b) has a rather longer history, its origin lying in the National Insurance Act 1911.  In R(U) 14/52, it was held that, in order to avoid a sanction under the forerunners in section 19(6)(b), a person ought generally to be reasonably sure of getting fresh employment without the need of claiming unemployment benefit before leaving employment voluntarily.  Nonetheless, a lenient approach was taken where a claimant had tried out a new type of work.  In R(U) 13/52, where the claimant was concerned about his ability to perform the duties in his new employment but there was no evidence that the employer was dissatisfied with the his work and where the Commissioner was not satisfied that the claimant was physically incapable of making the journey to work despite some disability, the claimant was found not to have had just cause for leaving the employment he had been in for four weeks but the period of disqualification was reduced to one week (at a time when the maximum period was six weeks and the minimum period was one day).  In R(U) 3/73, the claimant escaped any sanction at all because it was held that he had had just cause for leaving employment voluntarily when it became apparent during a probationary period that he was not suited to the work.  It appears that the Commissioner accepted that he was out of his depth.

13.	It seems to me that the forerunners of regulation 74(1) and (4) were enacted to bring greater clarity and precision to the law and, in particular, to establish clear circumstances in which a person may voluntarily leave employment taken on a trail basis without attracting a sanction.  The implication is that in other circumstances a sanction may be appropriate although, applying R(U) 13/52, the period for which the sanction is imposed may be relatively short, depending on the circumstances.  However, it is to be observed that the legislation is drafted in such a way that it applies where a person leaves employment during the relevant period, even if the reason for leaving the employment has nothing to do with the employment having been taken on trial or, indeed, even if it was not in fact taken on trial.  Presumably, this is to avoid the need for investigation of the circumstances of the case in any detail.  Moreover, the introduction of legislation specifically dealing with trial periods cannot have the effect that a person may never have just cause for voluntarily leaving employment taken on a trial basis even when he or she does not fall within the scope of what is now regulation 74(1) and (4).

14.	If, in paragraph 12 of the statement of reasons, the tribunal meant to say that the grounds upon which a claimant could have declined a job can never amount to just cause for leaving it, I would not agree.  There are many factors that would amount to good cause for the purposes of section 19(6)(c) and (d) and would equally well amount to just cause for the purposes of section 19(6)(b).  This would be the case where, for example, it became apparent that the claimant was simply not capable of performing the duties involved in the job, as in R(U) 3/73, or where the journeys to and from the place of employment proved not reasonably practical.  However, on the tribunal’s findings, this was not such a case.  The reason the claimant left his employment in the present case was not one of incapacity or impracticality beyond his control.  The Secretary of State accepts that, under regulation 16 of the 1996 Regulations, the claimant would probably have been entitled, for a “permitted period”, to restrict his availability for work to his usual occupation and at a level of remuneration that he was accustomed to receive, with the result that he would not have been required to take the job at the ambulance service.  Nonetheless, the claimant was not bound so to restrict his availability: he had a choice.  In those circumstances, I agree with the tribunal that the mere fact that he could have declined to take up the employment does not give him just cause for voluntarily leaving the employment later.  The claimant having elected to take the employment, the reason that he might have rejected it did not “cause” him to leave.

15.	It could be argued that this is not a true “trial period” case because the claimant did not take the employment as a potentially permanent job but as a stop-gap until he found something more suitable.  I have therefore considered R(U) 40/53, where it was held that the approach taken in R(U) 14/52 “does not necessarily apply where the employment, which a man already has, is not employment of a suitable kind in his chosen vocation, but is a mere stop-gap or make-shift”.  The claimant in that case was seeking employment as a waiter at a holiday camp but agreed to work as a service porter or counter-hand until his services as a waiter was required.  He gave notice when he was required to peel potatoes and the Commissioner held that he had just cause for leaving voluntarily.  However, it is apparent that the mere fact that the employment was a stop-gap was not the sole reason for the decision.  The change in the nature of the claimant’s duties and the fact that the claimant “left employment, which promised for an indefinite period to be a make-shift employment, in order to obtain a situation in his regular occupation, which he had good prospects of obtaining” that were the important factors.  In the present case, the claimant’s duties had not been changed and the tribunal did not accept that the claimant’s part-time employment with the ambulance service significantly limited his opportunities for seeking other employment.  Accordingly, I am satisfied that the tribunal was entitled to find that the claimant did not have just cause for leaving his employment.

16.	As the tribunal was also right to find that the claimant did not fall within the scope of regulation 74(1) because he had not been unemployed for 13 weeks before taking the relevant job, it follows that a sanction had to be imposed.  I turn to the question of the period of the sanction.

17.	It was established in R(U) 8/74 that there is a broad discretion as to the period for which a sanction is to be imposed within the limits now set out in section 19(3) of the 1995 Act and that the discretion is to be exercised having regard to all the circumstances of the case.  This is now made explicit in regulation 70 of the 1996 Regulation, which the tribunal clearly had in mind because “mental stress” to which the tribunal referred in paragraph 17 of the statement of reasons is a factor that must be considered under regulation 70(d).

18.	I assume that, when using the word “increasing” in paragraph 12 of the statement of reasons, the tribunal meant “re-imposing” since, of course, there is no question of the burden on public funds having been made greater as a result of the claimant obtaining employment than it would have been if he had not done so.  Quite the reverse: as the tribunal recognised, a claimant who has taken employment as a stop-gap when he or she need not have done so will have relieved the National Insurance fund of the burden of supporting him for the period when he was employed.  The fact that the claimant need not have taken employment will therefore be highly relevant to the length of the period for which a sanction is imposed if the claimant has left the employment voluntarily.  The tribunal considered that regard should be had to the terms of regulation 74 when considering how to exercise the discretion in section 19(3) in circumstances where the claimant has in reality tried out a new form of employment but for one reason or another the conditions of regulation 74(1) and (4) are not fully met.  That approach was legitimate in this case because regulation 74(1) and (4) applies as much to stop-gap employment as to true trial periods.

19.	It seems to me that the claimant has a point that, if the only reason he did not fall within the terms of regulation 74(1) and (4) was properly described as “a technicality”, the minimum period of sanction should have been imposed.  Indeed, in a case like the present where, as a stop-gap, the claimant very clearly took employment for which he would not have been required to be available, one might well expect a tribunal to regard the case as one where the minimum sanction should be imposed if all the conditions of regulation 74 were met but for the 13 weeks of previous unemployment.  

20.	However, despite using the term “technicality”, it seems to me that the tribunal did not accept that the claimant’s position was entirely analogous to that of a claimant entitled to rely on regulation 74(1), because it is clear that the tribunal took the view that the claimant should not have left his employment when he did.  It is significant that, as the Secretary of State points out, the 13 weeks of previous unemployment was not the only condition of regulation 74(1) and (4) that was not met in this case.  Although the claimant was employed for a month on a contract for 20 hours per week, he had not in fact worked for 16 hours during each of four weeks as required by regulation 74(4).  He had originally been rostered to do ten shifts during the period of his employment but had been on leave for various reasons on five occasions and so was at work for only five shifts (including his training).  Thus, he cannot have worked for as much as 16 hours in each of more than two weeks.  This is important because regulation 74(4) is plainly intended to require a claimant who has obtained employment to get used to it and give it a proper chance before making the decision to leave.  It then gives the person a further eight weeks in which to make his or her mind up, presumably on the basis that, if the claimant perseveres with a job for twelve weeks, he or she can reasonably be expected to continue in it thereafter until alternative employment has been obtained.  In my judgment, the tribunal was entitled to take the view that the claimant had left prematurely in this case, notwithstanding that he need not have taken the job in the first place.

21.	In a case where regulation 74 would apply but for the claimant’s premature decision to leave the new employment, I suggest that the appropriate sanction may be one that reflects the balance of the minimum trial period required by regulation 74(4), plus a further period to reflect the possibility that, if the claimant had given the job a longer trial, he or she might have decided to remain in it.

22.	Applying that approach by analogy to the present case, the balance of the minimum trial period would have been two weeks.  The likelihood of the claimant remaining in the employment had he stuck it out until then might have been low, but compliance with regulation 74(4) would have required him to have doubled the number of actual working shifts (as opposed to training) he had completed and the possibility of him having become reconciled to the job as an interim measure cannot be ignored.  In those circumstances, the tribunal’s decision to uphold the Secretary of State’s decision to impose a sanction for a total period of six weeks, notwithstanding that it accepted that the claimant had taken unsuitable employment that could be regarded as having been taken by way of a trial or as a stop-gap, was entirely reasonable.

23.	Accordingly, although my reasoning would have differed in detail from that of the tribunal, I am satisfied that the tribunal’s decision is not erroneous in point of law and I dismiss this appeal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		19 May 2008