Retaining worker status whilst unemployed

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  • #35374
    jane
    Participant

    A8 national entered UK in 2003 and has home office documents which confirm she didn’t need to go on WRS. Her employment history is:

    01.06.03 – 20.12.05 – working
    22.05.06 to 28.08.07 – working
    29.08.07 to 26.05.08 – changed employer 29.08.07
    27.05.08 to 11.08.08 – received JSA(IB) after a successful appeal
    12.08.08 to 30.09.08 – worked and felt forced to resign due to racism
    01.10.08 to 14.01.09 – Unemployed, JSA refuses and appeal lodged
    15.01.09 to date – working

    She has appealed against refusal of HB/CTB for the period of unemployment 01.10.08 to 14.01.09.

    I believe that she cannot retain her worker status as she voluntarily left her job. ( Per EEC regs, reg 6 ( 2 ) and article 7 of EC 2004/38 ).
    Can anyone think of any other provision that could allow her to get HB/CTB. It’s at Tribunal stage and I want to be sure I haven’t missed anything.

    Many thanks for any help

    Jane

    #99186
    Kay_Tade
    Participant

    If she has a permanent right to reside(If legally resident for 5 years) then she would be entitled to HB, this seems likely with the scenario given.

    #99187
    jane
    Participant

    I thought she had to satisfy the RTR criteria for 5 years though, and she hasn’t?

    #99188
    Kay_Tade
    Participant

    There are various ways to satisfy R2R under UK and european law and there is every possibility, based on what you have described, that she may have satisfied this, I would also wait the outcome of the JSA Appeal because reg6 of EEC and Article 7of EC 2004/38 has probably been satisfied for the period JSA refused.

    #99189
    jane
    Participant

    Thanks for your reply chacha, but I disagree. EEC reg 6 and article 7 states a person must have been [b:24152d50e7]involuntarily[/b:24152d50e7] unemployed, but my claimant resigned from her job. I don’t really think that I can hold off submitting her appeal waiting for the outcome of the JSA one as going on the current time delays with the TS this could be months away.

    #53547
    Kay_Tade
    Participant

    Fair enough, my thoughts are if you have to quit employment because of racism this can’t be classed as “a choice” to leave the job…..

    #53548
    Kay_Tade
    Participant

    This is rather a sore subject with me so….

    I just tried some employment rights sites, there is some hope for your claimant. If she can establish that she had ‘just cause’ for leaving her job. The JSA rules allow a person to leave their Job under certain conditions. If your client is bringing an Employment Tribunal claim against her ex-employer this fact should help her argument that there was ‘just cause’. Equally a claim for JSA will demonstrate that your client was actively seeking work, and that she is trying to mitigate her loss……good luck either way

    #99190
    jane
    Participant

    Hi – yes, I too have been looking up ‘voluntary unemployment’ on the net – many thanks for your efforts.

    Jane

    #99191
    stevedaymond
    Participant

    See section 11 of CH/3314/2005 confirming that the reasons for leaving employment are not relevant in establishing if a person is involuntarily unemployed. Instead you need to look at what they are trying to do to change the fact i.e. searching for employment. She must also have been signing as unemployed with the relevant office so was she signing even though the JSA was refused?

    #99192
    jane
    Participant

    Thanks Steve,

    I’m not sure if she was signing on but as she was only unemployed for 10 weeks I think she was job seeking.

    Arcticle 7(3) (b) of EC/2004/38 and 6(2) of the EAA 2006 regs talks about being involuntary unemployed after been employed for more than one year. Do you know whether the 12 month employment has to be immediately prior to the unemployment or whether the previous years count.

    Thanks for your help,

    Jane

    #99193
    stevedaymond
    Participant

    7(3)(c) covers those who leave in the first 12 months

    #99194
    jane
    Participant

    I don’t think that 7(3)(c) applied as it wasn’t a fix term contract.

    #99195
    stevedaymond
    Participant

    7(3)(c) he/she is in duly recorded involuntary unemployment after
    completing a fixed-term employment contract of less than a year [u:9126c1f7ad][b:9126c1f7ad]or[/b:9126c1f7ad][/u:9126c1f7ad] after having become involuntarily unemployed during the first
    twelve months and has registered as a job-seeker with the relevant
    employment office. In this case, the status of worker shall be
    retained for no less than six months;

    #99196
    jane
    Participant

    Oh, yes. OK.
    Based on my claimant’s circs, you would be happy to pay HB/CTB then?
    sorry if I’m being dopey and thanks for your help.
    Jane

    #99197
    stevedaymond
    Participant

    It all depends on if she was signing as unemployed at the jobcentre. Each applicant at the jobcentre has a ‘LMU’ which is a Labour Marteting Unit book and the JCP hold a ‘ES24’ form that the applicant has to sign every 2 weeks to confirm they are actively jobseeking which the claimant can request a copy of and is a great way of checking they have been signing while unemployed. If the claimant can provide this or any other evidence that she has been signing and probably yes, I would pay.

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