Deborah Orr: Serving out injustice to the low-paid

'Term-time workers are deemed to be engaged in renumerative employment during the school holidays. Which is news to them'

Imagine – unless no imagining is needed – that you have an important and demanding job in the state education sector. Imagine, too, that your commitment to the children in your care is so great that you are willing to accept pay well below the poverty line. Imagine you are employed as a special needs assistant in the classroom for 20 hours a week. Imagine that you earn for this work £3,367 a year.

Impossible? Not at all. Classroom assistants, invaluable to the education system, depended upon by teacher and parent alike, earn just this kind of money. Daniel Banks, for one, does not have to imagine such a billet. He works at a junior school in the Doncaster area, and has been living on this sort of salary for many years.

You might imagine also, that if you were in such a position, the state benefit system would be on your side, providing a mechanism whereby the invidiousness of your situation could be assuaged just a little. Until the early 1990s, you would have been right. At that time, Mr Banks could draw income support during school holidays. After all, Mr Banks is paid only in term time, and has to live during the holidays as well.

But in February 1997, Mr Banks was told he could no longer expect income support. Nor was he entitled to the new jobseeker's allowance, which came into operation in 1996.

This decision has remained in force ever since. It has received little attention, except from the public service union, Unison, which has campaigned for some years about the issues surrounding term-time workers such as Mr Banks. The union's solicitor, John Clinch, has represented Mr Banks for some years, with legal proceedings culminating last month in an appeal against the decision to the House of Lords. The appeal was denied.

Unison has also been lobbying the Government about the situation of term-time workers like Mr Banks more generally. Responses have been "unsympathetic". The Department of Social Security appears to believe that this is an education issue. The education department appears to believe it is a social security issue.

This anomalous exclusion from the welfare state does not just hurt Mr Banks and a few colleagues. Term-time workers at schools include school meals workers, janitors, cleaners and classroom assistants. The plight of nursery nurse Lisa Potts was sympathetically reported. She had received what was widely regarded as a swingeing compensation payment after being slashed by a machete-wielding man while protecting schoolchildren in her care. What was less widely reported was that she earned only £10,000 a year in her job in the first place.

The discrimination does not stop in our schools. In further education colleges and universities, the same thing happens, this time affecting technicians, security staff and administration staff. While the particular difficulties of those working in education are exacerbated by the presence of long, regular, school breaks, other public sector workers are caught in a poverty trap just as vice-like.

Under previous practice, many of Unison's members would have been protected by national bargaining structures which promoted collective bargaining. These have been falling away since the early days of Thatcherism. Many of these people, unlike Mr Banks, work for the public sector via private sector contracts. Initially, people's rights are protected under these contracts, but after a period their rights tend to be eroded. New workers joining after contracting out do not receive these rights at all, and thus find themselves part of a two-tier workforce.

One woman, employed by a local council for many years, was told on her sixtieth birthday that she would have to reapply for her job under a new contract. Previously she had been earning £7 an hour. Now she earns £4.50. Another works for a university as a cleaner on £3.50 an hour, without sick pay.

In general terms, the problem is simply low pay; this problem extends to include home helps, hospital porters and domestics, entry-level nurses, street cleaners and many others. This endemic culture of low pay is partly historical, and partly linked to privatisation that the Government is committed to.

In specific terms, however, the problems of term-time workers smack of a mindset that puts its faith in the idea that if a system is in place, then it must be fair and it must be adhered to. So even though the welfare state discriminates against low-paid term-time workers, even though these workers do a job that is necessary and valuable in itself and in terms of governmental goals and strategies, and even though such workers make up a substantial chunk of the population, it is deemed impossible for the system to be disregarded in their special case.

In fact, it appears that simply understanding the regulations at all is challenge enough, let alone massaging it to accommodate the special needs of the likes of special needs assistants. Or, as the House of Lords law report puts it: "The commissioner's decision was made on the basis that a person to whom regulation 5(3b) of the Income Support (General) Regulations (SI 1987 No 1967) as inserted by the Income-related Benefits Schemes (Miscellaneous Amendments) regulations (SI 1995 No 516) and regulation 51(2)(c) of the Jobseeker's Allowance Regulations (SI 1996 No 207), applied was not to be regarded as engaged in renumerative work during those holidays."

In other words, under the interpretation suggested by the jobseeker's allowance regulations, term-time workers are deemed to be engaged in remunerative employment during the school holidays. Which will be news to them.

As Dave Prentis, general secretary of Unison, points out: "This is a bitterly disappointing decision for many thousands of low paid, mainly women workers, who now face the long summer holiday knowing that they will have no money coming into the house. Many more members have claims going back years and they will feel very bitter that they will not be entitled to any back-dated benefits."

But jobseeker's allowance is not the only problematic benefit. Term-time workers are ineligible for a range of other initiatives introduced by Labour to "lift people out of the poverty trap". If they are single or have grown-up children, they are not entitled to claim working families tax credit.

Because their pay is annualised – spread out over the year – many of them did not get an increase when the working time directive introduced a statutory payment of four weeks' paid holiday leave per year.

Again, because their pay is annualised they do not have a cause for action under the minimum wage legislation (in a special deal which could almost have been carved out expressly for the purpose of minimising the rights of low-paid public sector workers such as Mr Banks.)

Surely anyone can see that whatever the dictates of the "logical" framework set up by these layers of regulations, what is actually happening is unfair? Surely anyone can also see that if the niceties of such logic underpin the employment of essential workers, then those in receipt of essential services – that's pretty much all of us, directly or indirectly – are losers as well.

The mantras of New Labour – "education, education, education", "joined-up government", "making work pay" – are all betrayed by this systematic refusal to look at people as people and not as the recipients of abstract, intellectual, judgements.

Even the idea that Mr Banks could be helped if he had a child, but cannot since he doesn't, is the opposite of a family-friendly policy. Perhaps Mr Banks would like to have a family. Under his professional circumstances though, he'd be an idiot to attempt it.

d.orr@independent.co.uk