R(JSA) 5 /02

Mr. M. Rowland	CJSA/3629/1998
5.11.01
Remunerative work - indefinite contract with express provision for employment during university terms but not vacations - whether cycle of work established from commencement of contract 
The claimant was employed as a shop assistant by a students’ union “Monday to Friday, 8.15am to 1.15pm term time only” from 10 March 1997. Her claim for jobseeker’s allowance during the 1997 summer vacation was disallowed on the ground that she was engaged in remunerative work and her appeal was dismissed by a social security appeal tribunal. The tribunal applied regulation 51(2)(c) of the Jobseeker’s Allowance Regulations 1996, which made provision for determining whether a person was engaged in remunerative work “where the person works at a school or other educational establishment or at some other place of employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work”. The claimant appealed to the Commissioner. The Secretary of State supported the claimant’s appeal, submitting that regulation 51(2)(c) could not apply until a claimant had been employed for at least a year, because no cycle of work would have been established. 
Held, dismissing the appeal, that:
1.	if there was an indefinite contract which expressly provided for a cycle of work, the cycle was established from the commencement of the contract;
2.	the claimant’s contract was not for a fixed term, was for fixed hours, was not casual and made express provision for the claimant to be employed during university terms and not during vacations and, in those circumstances, it did provide for a cycle of work which was established from the commencement of the contract;
3.	regulation 51(2)(c) did apply to the claimant’s case and the tribunal’s decision was not erroneous in point of law (following Banks v Chief Adjudication Officer [2001] UKHL 33, reported as R(IS) 15/01).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Sheffield social security appeal tribunal dated 14 November 1997.

Reasons

2.	By section 1(2)(e) of the Jobseekers Act 1995, it is a condition of entitlement to jobseeker’s allowance that the claimant should not be engaged in remunerative work. By regulation 51 of the Jobseeker’s Allowance Regulations 1996, remunerative work is work in which the claimant is engaged on average for not less than 16 hours per week and regulation 51(2)(c) provides that the number of hours for which a person is engaged in work is to be determined –

“where the person works at a school or other educational establishment or at some other place of employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work, by disregarding those periods and any other periods in which he is not required to work”.

Thus the number of hours worked is calculated by looking only at the number of hours worked during term time. In Banks v. Chief Adjudication Officer [2001] UKHL 33, [2001] 1 W.L.R. 1411 (to be reported also as R(IS) 15/01), the House of Lords held that, where a calculation under regulation 51(2)(c) showed that the claimant was engaged in work for at least 16 hours per week, the claimant was to be regarded as being engaged in remunerative work during the school holidays or similar vacations as well as during term time. In other words, the claimant was to be excluded from entitlement to jobseeker’s allowance all year round. That decision of the House of Lords is binding on me.

3.	In the present case, the claimant was employed as a shop assistant by a students’ union, “Monday to Friday, 8.15 am to 1.15 pm term time only” from 10 March 1997. A students’ union shop may be “some other place of employment” rather than an “educational establishment” but the important point is that the contract provided for the claimant to work during the university terms and not during the vacations. If regulation 51(2)(c) applied to the claimant, she was plainly to be regarded as engaged in remunerative work during the vacations even though she was not working then.

4.	However, the Secretary of State submits that regulation 51(2)(c) does not apply until a claimant has been employed for at least a year, which was not the case when this claimant made her claim during the 1997 summer vacation. I do not accept that submission. It must be established that there is a cycle of work but it seems to me that, if there is a permanent contract – or more accurately, an indefinite contract – which expressly provides for a cycle, the cycle is established from the commencement of the contract. It may be different where there is a fixed-term contract or where a person is employed on a casual or relief basis. In the case of a fixed-term contract for a period less than the length of two cycles, there may not be the degree of recurrence necessarily implied by the concept of a cycle (see CIS/493/1993 and CIS/11228/1995). In the case of a casual or relief arrangement, it may be clear that a person will not work during holidays or vacations but it may not be clear that he or she will work during the whole of the terms and for that reason a cycle may not be established. However, where there has been a series of fixed-term contracts or where a person has in fact been regularly employed albeit on what is formally a casual basis, there may come a time when a cycle is established in practice, although that is likely to require the completion of two cycles. In R(IS) 8/95 a two-week cycle became established after four weeks. In R(IS) 15/94, a yearly cycle was found to be established in the case of a school receptionist after 18 months but, as was pointed out in CIS/11228/1995, the receptionist had by then received a written contract, specifying the periods of work and no-work, which, I would add, appears to have been of indefinite duration. In CIS/11228/1995 itself, no cycle had been established in the case of a school bus driver who had worked 20 hours a week during term times for 15 months.

5.	The contract in this case was not for a fixed term. Although the employment was described as “sessional” it was in fact for fixed hours and was not casual and the contract made express provision for the claimant to be employed during university terms and not during vacations. In those circumstances, the contract provided for a cycle, which was established from the commencement of the contract. In fact, the claimant did some additional work for her employers during the vacation immediately before she made her claim. However, such additional work during a vacation does not mean that there is no cycle established by the contract, whether the additional work is for another employer or for the same employer. Therefore, regulation 51(2)(c) applied to the claimant in this case. That is what the tribunal decided.

6.	The tribunal’s decision was not erroneous in point of law.

Date: 5 November 2001					  (signed) Mark Rowland
Commissioner