File number:  CJSA 3790 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal, but I give a decision that is the same in effect as that of the tribunal.

2	The appellant is appealing, with my permission, against the decision of the Sheffield appeal tribunal on 10 July 2001. The decision of the tribunal was that :
	“A sanction is imposed for period 7. 4. 01 to 20. 4. 01 inclusive. This sanction is justified due to the appellant’s misconduct”. 

3	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. I replace the decision of the tribunal with the decision that the tribunal should have made. This is:

A sanction is imposed on the appellant for the period from 7 April 2001 to 20 April 2001 inclusive under section 19 of the Jobseekers Act 1995.

The imposition of a sanction

4	The appellant, who was 46 at the time, joined a 13 week “Intensive Activity Period of the New Deal Pilots for 25 Plus  ”  (“IAP”) on 15 January 2001.  On 7 March 2001 (less than 7 weeks later) the appellant was asked to leave the IAP because of alleged misconduct. The decision under appeal and imposing a sanction was made in the name of the Secretary of State by local Employment Service staff in April. 

5	The relevant law is contained in the Jobseekers Act 1995 and the Social Security (New Deal Pilot) Regulations 2000 (“the Pilot Regulations”). Section 19(1) of the Jobseekers Act 1995 provides that the jobseeker's allowance shall not be payable in any of the circumstances mentioned in subsection (5) or (6). Section 19(2) provides that the period of non-payment is to be prescribed. Section 19(5)(c) states that one circumstance is that the claimant “has lost his place on such a scheme or programme through misconduct”.  The IAP is  “such a scheme or programme”. Regulation 6 of the Pilot Regulations is headed “sanction”. Regulation 6(2) and (3) prescribe that for cases under section 19(5) such as that of the appellant the period of non-payment of jobseeker's allowance is to be 2 weeks unless certain additional criteria are met. If those criteria are met, the period is 4 weeks.  The period of 2 weeks was used in this case, so the additional criteria are not in question. There is no discretion in section 19 or regulation 6.  It follows that if the appellant’s conduct was within the description of section 19(5)(c), that is, he lost his place through misconduct, then the Pilot Regulations impose a sanction of the loss of 2 weeks’ jobseeker's allowance. 

Misconduct

6	The submission to the tribunal adopts the same approach to the term “misconduct” as that determined by Commissioners for the former unemployment benefit. In particular, R(U) 10/54, R(U) 2/77, and R(U) 12/56 are cited.  R(U) 12/56 was a case where a clerk was discharged from employment for use of obscene language and suggestive remarks about  female employees.  The Commissioner stated that:
“It cannot be doubted that unseemly conduct, connected with an employment, and deliberately indulged in, which not unreasonably causes offence to fellow workers, constitutes “misconduct” within the meaning of section 13(2)(a) of the National Insurance Act 1946.”   
The tribunal does not deal specifically with its understanding of the term “misconduct” in its decision, but appears to have used it in the way set out in the submission to the tribunal. The secretary of state's representative has also assumed that approach. I accept that as the right approach. The meaning of “misconduct” under unemployment benefit was established in precisely the context in which the Pilot regulations use it.  The approach to be taken to misconduct as used in section 19(5)(c) and the Pilot Regulations is the same as that for unemployment benefit.

Did the tribunal err in applying these rules?

7	The appellant said that he wanted a paper hearing “reluctantly”. He had just started a new job on nights regular. But he made a lengthy statement. This was put before the tribunal, together with statements from the providers of the IAP.  The relevant findings and reasons of the tribunal are:

“3	It was alleged that [the appellant] swore at two members of staff and threatened one with physical violence.

4	[The appellant] admits in written evidence that he used swear words on two occasions but has consistently denied threatening violence. [The appellant] said he was ill that day, had taken aspirin which affected his judgment, the incident was brief and at the end of the day and that a warning would have been sufficient.

5	The Tribunal on balance accepted that the employer’s (or provider’s) version of events was more likely. In his position of employee, [the appellant’s] behaviour and bad language was wrong and constituted misconduct.

6	[The appellant] was dismissed due to his misconduct and as a result his jobseeker's allowance was subject to a sanction.

7	The appropriate sanction was a fixed period of 2 weeks.”

8	The appellant objected that the tribunal had been unfair to him in the way it considered the evidence and the provider had been unfair to him in sacking him.  He put these issues expressly to the tribunal and the tribunal had not dealt with them. I granted permission to appeal because the issues behind that ground were arguable and because it was not clear that the tribunal had itself checked that the relevant preconditions for applying the IAP to the appellant were met.  In a full submission, the secretary of state's representative supports the appeal on both the grounds I identified.  I deal with them in turn.

Were the IAP requirements met?

9	The secretary of state's representative now accepts that the formal submission to the tribunal did not provide information on all the requirements to show that the appellant was properly involved on an IAP and that the sanction was properly imposed. In particular, there is no evidence to meet the requirements that an individual can only be invited, without having volunteered, to attend an IAP if he or she has been on jobseeker's allowance for a prescribed and lengthy period. The secretary of state's representative also accepts that as this is a case about applying a sanction the onus is on the Secretary of State to establish these points. It is also accepted that the tribunal failed to make good the omissions of the secretary of state's representative in the submission to it, and that therefore the decision of the tribunal is in error. That is in my view right, and the decision must be set aside.

10	 The secretary of state's representative also accepts that the tribunal did not deal adequately with the clash of evidence. It neither sought the further evidence that the appellant expressly asked it to seek, nor heard any supporting evidence from the secretary of state's representative to deal with the points made by the appellant, nor considered an adjournment for an oral hearing or further evidence. Put simply, it had no evidential basis in the papers now on file for preferring the extremely brief evidence of one member of staff of the provider to that stated at much fuller length by the appellant. This is important because the papers also contain more generalised issues (not produced from or by the appellant) about the attitude and competence of the member of staff.  

11	The secretary of state's representative draws attention to C.U. 1/57 where a Commissioner stated:
	“Particularly where a claimant is charged with misconduct, and he denies the facts which are alleged to constitute the misconduct, it is desirable that the most direct evidence of those facts should be adduced, so that the allegations may be properly tested.”
It was at one time common for the Secretary of State to produce witnesses and formal witness statements from employers and others to substantiate allegations of misconduct, no doubt in the light of this authority. In this case, both the local Employment Service and in particular the tribunal should have given much greater thought to the issue of the evidence, in particular where the allegations of misconduct go both ways (that is, misconduct accusations apply to witnesses as well as appellants). The fact that the appellant did not ask for an oral hearing is not the only issue. The onus is on the Secretary of State, and it is for the Secretary of State to produce the evidence and if appropriate ask for the oral hearing.  There is much authority from Commissioners that tribunals should not lightly accept proof of misconduct. I agree with the secretary of state's representative that the tribunal did not deal with this adequately. I must set aside the decision of the tribunal on this ground also.

My decision 

12	The secretary of state's representative has now produced further evidence to show that all the requirements of the Pilot Regulations are met, and that the appellant was properly subject to an IAP. The appellant does not dispute the facts now produced, and I find that all the requirements of the regulations are met.

13	Was there misconduct?  The submission to the tribunal was that, even on the appellant’s own account, there was behaviour that could be regarded as misconduct as defined by R(U) 12/56. The submission to the tribunal very fairly draws attention to the two different versions of events, asking the tribunal to decide what happened.  The appellant’s real grievance was that the evidence of the employee was accepted, and his was rejected, without reason.  I have accepted that. But equally the appellant has himself not sought to deny some aspects of his conduct. He specifically and repeatedly denied threatening anyone with his fist. But he accepted that he was trying to sign out from the IAP a few minutes early and that the incident occurred when a member of staff removed the signing off sheet to stop him doing so. He accepts that he swore at that member of staff and then at another member of staff, using an obscenity and calling the latter “an evil cow”. He does not deny that he then stormed off. And in reply to the submission of the secretary of state's representative that I should make my own decision imposing the penalty, he stated that he was happy about this provided that the Commissioner makes it quite plain that he did not threaten violence and did not use one of the terms of abuse of which he is accused.

14	In the light of those submissions, my decision is that the sanction was rightly imposed by the Secretary of State. The incidents occurred during an IAP that the appellant was properly attending. If those incidents amounted to misconduct, the 2 week sanction follows without discretion. Applying the test in R(U) 12/56, I find that there was misconduct in this case in the conduct and language admitted by the appellant. The appellant asked that his state of health be taken into account. I do not see that that changes the character of his behaviour in this case. I make no finding that the appellant did  - or did not  - threaten to hit an employee. There is clearly a conflict of evidence about this. It is “not proven” and I do not need to resolve it to make my decision. Were I to seek to do so, I would want to see further evidence or preferably to hear witnesses. There is also a clear conflict of evidence about the language used, but the language to which the appellant admits is sufficient to meet the test. 

									David Williams
									Commissioner

									13 February 2002
[Signed on the original on the date shown]