Advice on A8 following Tribunal Hearing

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  • #37967
    jane
    Participant

    I recently lost a case at tribunal for an A8 national on SMP and I’m not sure the Tribunal Service decision was correct. The LA decided that the person did not qualify for HB/CTB from 02.02.09. Here’s the work history:

    01.07.07 – started working for employer
    23.02.08 – Became registered for work on WRS with employer
    20.04.08 (approx) – On maternity leave and receiving SMP from employer
    10.05.08 – Baby born (only child)
    31.01.09 – SMP ceased

    During the appeal process, I asked for contract of employment, date left work, date maternity leave ceased, information about father etc, and no reply was received, (confirmed at tribunal she has no contact with Father and he’s returned to Latvia).

    She told the Tribunal that she never got a P45 and recalled her work supervisor calling her in approximately May 2009 asking if she was returning to work and she said that she couldn’t because of the baby. She applied for JSA 08.09.09 and it was refused and an appeal against that decision failed at Tribunal on the basis that she hadn’t completed 12 months on WRS.

    The HB/CTB appeal was allowed on the basis that she had completed 12 months on the WRS (28.02.08 to 28.02.09)and as her employer did not issue a P45 or terminate her employment, she was still classed as a worker thereafter, although no date was given and this is also an issue for me as there is an o/p till July 2009.

    I feel that we have no evidence whatsoever confirming that she was employed after 31.01.09 (if not before), and even if she wasn’t A8, she would not qualify. Before I ask for a SOR, am I missing anything?

    Thanks,

    jane

    #106858
    Kay_Tade
    Participant

    Looking at the dates I think the Tribunal was quite right. She was registered for 11 months, and we know that after 12 months without a break of more than 30 days, an A8 worker no longer needs to to register. The Tribunal, in my view, just added on the 30 days at the end of SMP. I would still ask for an S.O.R though.

    #106861
    stevedaymond
    Participant

    I think they got it right but for a different reason to Kay.

    As per 2(8) of The Accession (Immigration and Worker Registration) Regulations 2004 the person needs to be in employment for the 12 months and the 30 day break can not be added to the end to push the customer over the 12 months.

    (8) For the purpose of paragraphs (3) and (4), a person shall be treated as having worked in the United Kingdom without interruption for a period of 12 months if he was legally working in the United Kingdom *at the beginning and end of that period* and any intervening periods in which he was not legally working in the United Kingdom do not, in total, exceed 30 days.

    However, as per CIS/4237/2007 as A8 woman is still classed as a worker when on periods of maternity leave, including unpaid maternity leave. The same judgement also confirms that time spent on maternity counts towards the 12 months. As the maternity started in April and she would have been entitled to a year this would take her past the 12 months. It appears the job was being kept open for her as the employment contacted her after her 12 months to see if she was returning.

    From the point it was clear she would not be returning to the employment her worker status would end. If you had asked her if she was intending on returning following maternity etc and she said ‘no’, it would have been a different story. But based on what you have said in your post, I think they are correct.

    #106865
    jane
    Participant

    Hi,

    Thanks for replying. I agree that she has satisfied the 12 month WRS and didn’t really have an issue with this. What I’m struggling with is how she can be still classed as an employee given that she did not supply a contract of employment, or any evidence to show that she was still employed after her SMP ceased in 31.01.09.

    Even if we do accept that she is a worker after 31.01.09 when her SMP finished, surely she can’t be classed as a worker from May 2009 when she told her employer that she wasn’t returning to work after May 2009? (This appeal included an overpayment of HB up to July 2009).

    #106871
    stevedaymond
    Participant

    I would treat her as a worker until 20.04.2009 to allow for a years maternity and then from that point treat her as not being in employment for RTR purposes and ineligible.

    #106872
    Kay_Tade
    Participant

    [quote=jane]The HB/CTB appeal was allowed on the basis that she had completed 12 months on the WRS (28.02.08 to 28.02.09)and as her employer did not issue a P45 or terminate her employment, she was still classed as a worker thereafter, although no date was given and this is also an issue for me as there is an o/p till July 2009[/quote] Ask for an S.O.R, I must admit I didn’t consider the wording of Reg 2(8) of The Accession Regulations 2004 as Steve pointed out, but the only way they could have said she had R2R for 12 months, based on the details of your post, is to apply the 30 days.

    You have no evidence, after 31/01/09 when SMP ceased, that the claimant was a worker. They must be able to determine a date when 12 months was completed. How did they arrive at an end date? Without being on an employer’s books, SMP or not, your claimant can’t be treated as a “worker”.

    Edited:

    Well, UKBA seem to be of the same mind, the FtT must have added on the 30 days at the end of SMP. UKBA will issue a registration certificate[Completion of 12 months WRS] as long as any gap, from start to end, does not exceed 30 days.

    Quote UKBA:

    “A8 nationals will not be required to register under the scheme after they have completed 12 months uninterrupted legal employment in the UK **(gaps not exceeding 30 days in total over the 12 month period can be ignored))** and they can apply for a registration certificate. They must be treated like nationals of the pre-enlargement Member States.”

    #106949
    Anonymous
    Guest

    My understanding of jane’s account is that the FtT has not added the 30 days on at the end, the FtT has taken the view that the person was still an employee because there is no evidence of employment having been terminated before then. The Tribunal is saying that there are more 12 months’ registered work starting 23/2/8:

    – actually at work 23/2/08 to approx 20/24/08
    – on paid maternity leave from 20/4/08, still an employee under contract
    – on unpaid maternity leave from 30/1/09 after SMP ran out
    – after about 20/4/09, the claimant has exceeded her maximum period of maternity leave allowed by right, but there is no evidence that she was dismissed and so she remained an employee on up[aid maternity leave, the employer having decided at its discretion to allow longer than the statutory minimum period
    – the earliest evidence of resignation or dismissal is the phone conversation in May
    – until May 09 the 12-month issue doesn’t arise because she is still a worker
    – after May 09 the 12 month issue becomes relevant because she can retain her worker status after leaving employment provided she remains in the job market, having now been employed as a registered worker for longer than 12 months

    So her entitlement really just comes down to evidence of the facts: did the Tribunal have enough evidence to support a finding of fact that the claimant remained an employee at all stages set out above? Jane thinks not. The problem for an appellant at this stage is that they have the burden of displacing the status quo ante: if the finding about employment was one that the Tribunal was reasonably entitled to make on the evidence it heard the UT will not be able to reverse it.

    Jane has a stronger case for the months after the claimaant left employment – it seems to me less reasonable for a Tribunal to conclude at that stage that she was still in the job market because the reason she gave for leaving work was that she couldn’t work any more. So the overpayment from May to July probably ought to be confirmed, but for the period before May I woiuld guess that the decision is probably “judge-proof”

    #106987
    jane
    Participant

    Thanks so much for replying.

    I don’t think I even knew that there was a 12 month limit on maternity leave, and this information has really helped in that I feel happier that the dates given by the lady were quite accurate given there was NO EVIDENCE of anything she was relying on.

    I have asked for a SOR and am quite happy that your replies seem to indicate that I wasn’t missing anything.

    I really appreciate the time and trouble you’ve all taken – thanks a lot!

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