Terms & Conditions

[jane]

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

[Kay_Tade]

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.

[jane]

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

[Kay_Tade]

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.

[jane]

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.

[Kay_Tade]

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…..

[Kay_Tade]

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

[jane]

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

Jane

[stevedaymond]

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?

[jane]

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

[stevedaymond]

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

[jane]

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

[stevedaymond]

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;

[jane]

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

[stevedaymond]

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.

[Author]

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