Unpaid job schemes not a breach of human rights says High Court
Monday 06 August 2012
Government back-to-work schemes criticised as “forced labour” were ruled lawful by the High Court today.
A judge rejected jobless graduate Cait Reilly's claim that a scheme requiring her to work for free at a Poundland discount store breached human rights laws banning slavery.
Mr Justice Foskett, sitting at the High Court in London, said that "characterising such a scheme as involving or being analogous to 'slavery' or 'forced labour' seems to me to be a long way from contemporary thinking".
Miss Reilly, 23, from Birmingham, and 40-year-old unemployed HGV driver Jamieson Wilson, from Nottingham, both claimed that the unpaid schemes they were on violated article four of the European Convention on Human Rights, which prohibits forced labour and slavery.
The judge said both Miss Reilly and Mr Wilson were each entitled to a declaration that there had been breaches of the 2011 jobseeker's allowance regulations in their cases.
Mistakes had been made in notifying Ms Reilly about the requirements of the Work Academy Scheme so that she did not appreciate the scheme was not mandatory. Mr Wilson had been given inadequate notice about the Community Action Programme (CAP).
But the judge ruled neither scheme was contrary to article four, and the errors made did not invalidate the 2011 jobseeker's allowance regulations.
The ruling will come as a relief to the Government. Had it lost today's legal challenge, it was likely that all back-to-work schemes would have been potentially invalid.
The judge particularly criticised the Department for Work and Pensions (DWP) over the lack of clarity of the letters which warn claimants of a potential loss of benefits if they fail to participate in the schemes without good reason, and called for improved clarity.
Later, the Department said it had revised its standard letters, but nevertheless intended to appeal over that part of the ruling.
The judge said: "Whether the problems in Miss Reilly's case and Mr Wilson's case were 'merely teething problems' remains to be seen.
"The issues raised in their respective cases were properly raised even though the principal contentions advanced have been rejected."
Rejecting the main "slave labour" allegations, the judge said both the schemes under challenge "are a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Article 4.
"The (human rights) Convention is, of course, a living instrument, capable of development to meet modern conditions, and views may reasonably differ about the merits of a scheme that requires individuals to "work for their benefits" as a means of assisting them back into the workplace."
Later, a DWP spokeswoman said: "We are delighted, although not surprised, that the judge agrees our schemes are not forced labour.
"Comparing our initiatives to slave labour is not only ridiculous but insulting to people around the world facing real oppression.
"Thousands of young people across the country are taking part in our schemes and gaining the vital skills and experience needed to help them enter the world of work - it is making a real difference to people's lives.
"Those who oppose this process are actually opposed to hard work and they are harming the life chances of unemployed young people who are trying to get on."
Announcing that there would be an appeal over the warning letters about sanctions, the spokesman stated: "We do not believe there is anything wrong with the original letters and we will appeal this aspect of the judgment, but in the meantime we have revised our standard letters."
Later law firm Public Interest Lawyers (PIL), who acted for both Miss Reilly and Mr Wilson, said the issuing of flawed warning letters meant that "tens of thousands of people stripped of their benefits must now be entitled to reimbursement by the DWP".
PIL spokeswoman Tessa Gregory said: "As of January 2012, over 22,000 people had been stripped of their benefits for failing to participate in the Work Programme alone.
"That figure must now have doubled. Today's decision should mean that many of those subjected to benefit sanctions will be entitled to reimbursement by the Department of Work and Pensions.
"It is truly extraordinary that the Government has found itself in this position by failing to provide basic information to those affected."
The DWP reacted by saying: "We are appealing and do not expect to make any payments."
Miss Reilly graduated from Birmingham University with a BSc in geology in June 2010 and first claimed Jobseeker's Allowance about two months later.
The judge said her ambition was to pursue a career working for museums and she initially obtained a paid work experience placement at a local museum, The Pen Room.
When the paid placement ended, she continued to carry out voluntary work at the museum.
She made her second claim for Jobseeker's Allowance in July last year and no-one had questioned her level of effort in seeking employment, said the judge.
Miss Reilly said a Jobcentre Plus adviser told her there was an "opportunity" to attend an open day for jobseekers, and if she accepted a position she would undergo a week's training followed by a guaranteed job interview.
She attended the open day and was told that the "training" would last for up to six weeks, which meant she would be unable to continue her voluntary work at the museum, which was important to her career plans.
When she told her adviser she did not want to participate in the scheme, she was told that taking part was "mandatory" and failing to do so could mean the loss of her Jobseeker's Allowance.
Miss Reilly said she decided to take part because she could not afford to lose her only source of income for even a short period, said the judge.
After a week of preliminary training, she was placed in the Poundland store in Kings Heath, Birmingham, from November 7 last year for two weeks where she was required to work for five hours a day, five days a week for no pay - and only on the first day did it become apparent she would be working instead of training.
"From her perspective it was neither a happy nor a rewarding experience: she and other jobseekers were often left completely unsupervised and without direction and the work was basic and menial," said the judge.
After those two weeks she was required to carry out a further week of training. During the sixth week on the scheme she noted a missed call on her mobile phone to the effect that Poundland wanted to arrange an interview.
She left a voicemail but no-one ever called her back.
The judge said the DWP now admitted there had been a breach of the jobseekers' regulations because she had not been given proper notice.
Contrary to what she had been told, it was also not mandatory for her to have participated in the Work Academy Scheme, although once she had agreed to embark on the training element, it became mandatory.
The judge said: "Not unnaturally, Miss Reilly feels that she was misinformed about the scheme and, had she been correctly informed about it, she would have exercised her right not to participate in it."
Turning to Mr Wilson's challenge, the judge described the divorced father of three as an HGV driver who had held various jobs for different companies and had also worked as a landscape gardener.
In 2008, he was laid off from his last driving job and his personal circumstances deteriorated, leading to him receiving Jobseeker's Allowance.
Last year his Jobcentre Plus adviser told him that, in order to continue receiving Jobseeker's Allowance, he would be required to take part in the CAP back-to-work scheme.
He was given letters warning him that a refusal to participate could result in the loss of his benefit, said the judge.
In November last year he was told that a failure to take part could lead to his allowance being stopped for up to 26 weeks and he could also lose his National Insurance credits.
He attended a programme induction meeting and was told he was being placed with an organisation that collected disused furniture, renovated it and distributed it to needy people in the local community.
Mr Wilson said he was told he would be required to work 30 hours a week for 26 weeks, or until he found employment for 16 hours a week or more.
The judge said his attitude was that, while it sounded like a worthwhile organisation, "he was not prepared to work for free, particularly for such a long period of time".
Mr Wilson said if he had been offered a training course "that could lead to some concrete benefit then I would jump at the chance", but what he had been offered seemed "pointless" and would keep him from entering the job market.
He had been provided with incorrect and misleading information as his allowance could not be stopped for up to 26 weeks - it could only be stopped for two weeks under the regulations.
The judge said: "I intend no discourtesy to those who may find themselves the subject of a requirement to participate in the CAP, but it is likely that a fair number may be relatively unsophisticated and will need clear guidance about the consequences for them of non-participation to enable them to make an informed choice about whether to take part.
"I do not think a 'catch-all' suggestion of 'up to 26 weeks' meets the requirement of people in that category."
Each person was entitled to a "straightforward letter dealing with his or her personal position" and it should not be necessary for them to "ferret around" what most would find to be "inaccessible regulations", said the judge.
He said Mr Wilson was subjected to various sanctions, but they were lifted while his legal challenge was before the court after a "re-consideration".
The judge confessed to "not understanding fully how 're-consideration' can result in a complete lifting of sanctions that have otherwise been properly imposed".
He said Nathalie Lieven QC, who represented Mr Wilson, was entitled to describe the events concerning the sanctions in his case as reflecting "a catalogue of errors".
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