Workfare Cases Dependent on Worker Definition

21 February 2012 (PLANSPONSOREurope.com) - Legal cases against the UK government brought by people on benefits required to take unpaid work will rest on arriving at the correct definition of a worker, according to Esther Smith, Employment Partner at law firm Thomas Eggar.

Last week the Guardian reported that retailerTesco was accused of exploiting the jobless yesterday after advertising for unpaid nightshift workers.

A vacancy appeared online for the ‘permanent’ role stating that the applicant would receive only Jobseekers’ Allowance plus expenses.

The role appeared as one of hundreds of unpaid positions adopted by the supermarket as part of the government’s ‘workfare scheme’.

Smith told PLANSPONSOR Europe: “The first issue is what they are going to take the "employer" to task over, i.e. what claim do they have?  In order to benefit from most employment legislation in the UK (such as unfair dismissal) you need to be an employee which these individuals would not be, and indeed would not want to argue that they are, as this would effectively mean sacrificing their entitlement to benefits.
 
“In terms of the national minimum wage, which there has been some suggestion in the press that the workfare individuals should receive for the work they undertake, the right afforded by the legislation which implements the minimum wage applies to "workers" rather than employees, so there is some scope for someone to try to challenge the status of the workfare people.
 
“This would mean establishing that they were workers, as defined by the legislation, but also ensuring that this argument did not compromise their ongoing entitlement to benefits.  The problem here I think is that the receipt of payment as a worker under the minimum wage provisions would give rise to a cessation of benefits - this may be a non-issue for the two months they are undertaking the placement, but may leave people in difficulty in re-claiming benefit after that period.  The level of income may also impact on their entitlement to other benefits relating to housing for example, so if people do want to mount a challenge they would be best advised to ensure that what they are seeking to gain is not offset by what they may lose!”

PLANSPONSOREurope Staff
editors@plansponsoreurope.com