The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee encouraged the Government of the United Kingdom to transmit to the Committee of Experts the additional information requested, including the relevant statistics, in order to enable the Experts to make a fresh evaluation of the application of the Convention in the country.

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The Committee notes the Government’s reply to its previous comments, which refers to the information provided in the 40th annual report on the application by the United Kingdom of the European Code of Social Security.

Part III (Sickness benefit) of the Convention. The Committee notes the detailed information concerning the inclusion of the Child Tax Credit into the calculation of the replacement rate of the short-term benefits provided by the Government in reply to its previous conclusion. It also notes that the Government’s next report will include full details on the implementation of the new Employment and Support Allowance which is to be introduced from 27 October 2008.

Part IV (Unemployment benefit). The Committee recalls that the system of social protection against unemployment in the United Kingdom comprises various social security benefits including contribution-based and income-based Jobseekers’ Allowances (JSA), working tax credits, which make low-paid jobs more attractive for the unemployed, and a wide range of means tested social assistance benefits, which offer protection against poverty. The Committee would like the Government to show in its next report, on the basis of updated statistics, that the number of persons protected by the benefits included in the system attains the coverage required by Articles 5 and 21 of the Convention. Please indicate the amounts of these benefits which would be payable in the case of unemployment to a person having received the reference wage of an ordinary adult male labourer, determined under Article 66 of the Convention. The Committee would also be grateful to receive updated information for the same time period on the total number of unemployed persons in the country, the percentage of unemployed persons receiving the contribution-based JSA alone and the income-based JSA alone, as well as the average duration spent on these benefits before returning to work.

Part V (Old-age benefit), Article 28(a) (level of benefit). In its previous comments, the Committee noted that the rate of retirement pension for a standard beneficiary in 2006, represented 32.06 per cent of the reference wage, which is far below the minimum replacement level of 40 per cent prescribed by the Convention. In view of the ongoing pension reform in the United Kingdom, the Government was asked to indicate the part of the replacement income in retirement which, in the forecasted time frame, would be provided by the Basic State Pension (BSP) and the Second State Pension (SSP), as well as the part which would be supplied from the savings in the personal account. In reply, the Government indicated that for the median earner gaining £24,440 in 2007/08 earning terms and reaching state pension age in 2055, total weekly retirement outcomes in the year of retirement would represent £223 and ensure the replacement level of 47.5 per cent. Of this total, BSP (£82) and SSP (£69) in 2055 will ensure the replacement level of only 32.16 per cent, the same as in 2006, which will remain below the level prescribed by the Convention. The Committee understands, therefore, that to reach the projected replacement level of 47.5 per cent, the Government is counting on the private savings accrued within personal accounts, which are expected to generate a private pension (£72) providing about one-third of total retirement income. The Committee wishes the Government to provide an actuarial forecast under the best possible scenario showing by which year private pensions of at least 50 per cent of all employees in the country would be such as to ensure, together with BSP and SSP, the total retirement income of these employees, which will attain the 40 per cent replacement level guaranteed by the Convention. Please also indicate whether the current financial crisis has made it necessary to introduce corrections in the ongoing pension reform as regards the sustainability of the state pension system and the expected growth of private pensions.

Part X (Survivors’ benefit), Article 63, paragraph 1(a) and paragraph 2(a), (Level of benefit). To receive 100 per cent basic rate Widowed Parent’s Allowance (WPA), the late husband must have had qualifying years for about 90 per cent of the years in his working life. If the number of qualifying years is less than the number needed for a 100 per cent basic rate, the allowance is reduced accordingly; no allowance is payable if the number of qualifying years is less than a quarter of the number needed. The report states that, if 25 qualifying years yielded 100 per cent, the 15 qualifying years would equate to 69 per cent and five qualifying years would equate to nil. This explanation raises doubts that the above rule for calculating the qualifying period of the deceased husband for his wife’s entitlement to the WPA would ensure the level of protection of the widow guaranteed by the Convention. While the condition of having 90 per cent of the years in the breadwinner’s working life counted as qualifying years might be more favourable in case there were no, or very few, gaps in the breadwinner’s working career, the situation would be reversed for widows whose late husband’s working career has been considerably shorter than his working life. Thus, having 15 qualifying years out of 20 years of working life will result in 25 per cent reduction in the WPA, bringing it below the level required by the Convention, and having only five qualifying years, which should give entitlement to a widow’s reduced benefit under Article 63(2)(a) of the Convention, will result in no benefit at all. The Committee would like the Government to show in its next report, on the basis of the updated calculations, that in all cases covered by the Convention, the protection offered to a standard beneficiary by the WPA and other relevant benefits will not be less than the minimum replacement level of 40 per cent fixed by the Convention.

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The Committee took note of the information supplied by the Government in its detailed report on the Convention for the period 2001–06, which has provided replies on a number of points raised in its previous comments, as well as of the 38th and 39th annual reports on the application by the United Kingdom of the European Code of Social Security. The Committee would like the Government to provide additional information on the following points.

Part III (Sickness benefit) of the Convention. (a) Article 16, paragraph 1, in relation to Article 66 (level of the benefit). The detailed report of the Government stated that incapacity benefit (IB) is the main state sickness benefit in the United Kingdom for persons unable to work because of either short-term or long-term sickness. Employed workers are paid statutory sick pay (SSP) by their employers for the first 28 weeks of incapacity. Once entitlement to SSP has been exhausted employees can transfer on to IB. Employees who do not qualify for SSP can claim IB instead from the onset of incapacity. Comparing the calculations of the replacement level of the weekly rates of the short-term IB and of the SSP made in the last two detailed reports of the Government in 2001 and 2006, the Committee notes that, in addition to the child benefit for two children and the adult dependency increase which were taken into account in 2001, the calculations made in 2006 include the child tax credit (CTC) (£78.69 for both children). With the addition of the CTC, the replacement rate of the short-term IB and of the SSP attains, respectfully, 51 per cent and 53.7 per cent of the reference wage, which is above the minimum level of 45 per cent prescribed by the Code. If, however, the calculation were made without the CTC, the replacement rate of both the short-term IB (39.15 per cent) and the SSP (42.55 per cent) would not attain the minimum level prescribed by the Code. The Committee notes that the amount of the CTC is composed of different elements and depends on the gross annual family income of the beneficiary. It would like the Government to show in its next report how the weekly rate of the CTC is calculated for the standard beneficiary with gross annual family income equal or higher than the gross annual wage of an ordinary adult male labourer determined under Article 66 of the Convention.

(b) The 39th report on the European Code of Social Security indicated that on 3 May 2007 the Welfare Reform Act was given Royal Assent, bringing into law a number of reforms designed to enable people to come off benefit and move into work. The principal reform measure replaces IB with a new benefit to be introduced from 2008 called the Employment and Support Allowance (ESA). New customers will go onto an assessment phase rate of the ESA for 13 weeks while their medical condition is assessed. The majority of customers, those who should be able to make steps to return to work, will receive a work-related activity component on top of the basic rate after the first 13 weeks. This component can be subject to sanctions if the claimant does not engage in the conditionality requirements without good reason. Those with the most severe health conditions will receive the support component, which will be payable at a higher rate and free of any requirement to engage in work-related activities. An individual’s eligibility for incapacity benefits is assessed through the reviewed personal capability assessment (PCA) process which identifies people who are capable of taking part in work-related activity and the support required to help them get back to work, as well as those who are so limited by their illness or disability that it would be unreasonable to require them to undertake any form of work-related activity in the foreseeable future. PCA refocuses physical function descriptors and scores to better reflect the activities and functional capability that a reasonable employer would expect of his or her workforce and develops a new element to the assessment, the work-focused, health-related assessment, focusing on the health‑related barriers to work facing the customer, and the health interventions and workplace adaptations that might help that person return to work. The revised assessment will begin being used in 2008 alongside the new ESA. To further encourage a move into paid employment among people claiming incapacity benefits, a new Pathways to Work package was introduced, with national roll-out scheduled for completion in 2008. This package includes: a series of mandatory work-focused interviews; programmes designed to boost claimants’ prospects of being able to work; and increased financial incentives for individuals to enter paid employment. The Return to Work Credit (RTWC) is one of the main innovative components of the package: it is an earnings supplement available to incapacity benefit recipients who move into paid work. Payable at £40 per week, for a maximum of 52 weeks, it is available to those who have been receiving benefits for at least 13 weeks, have found a job of not less than 16 hours, and do not receive earnings in excess of £15,000 per annum. In view of the large number of innovative features of the new legislation, most of which will take effect in 2008, the Committee would be grateful if the Government would indicate in its next report, how these measures will affect the application of each of the Articles of Part III of the Convention. Please also provide the calculation of the level of the new ESA.

Part IV (Unemployment benefit). In relation to the Committee’s comments concerned with the low rate of the contribution-based jobseekers’ allowance (JSA), the Government responds in the 39th report on the European Code of Social Security, that social security benefits in the United Kingdom are paid at a flat rate, in that they are not indexed to the claimant’s previous income. The benefits are uprated annually in line with prices. This means that the purchasing power of the benefit remains the same year-on-year. Earnings, on the other hand, in a healthy economy tend to increase by more than the rate of inflation. People in work therefore see their standard of living improve year-on-year. Thus, over a period of time there is a tendency to see benefit rates fall behind average earnings but this does not mean that the benefit claimant is getting poorer; simply that their standard of living is remaining constant. The Government believes that benefit rates are pitched at the right level – enough to cover essential needs without encouraging benefit dependency. For those whose needs are greater, the United Kingdom has a wide range of means-tested social assistance benefits that guarantee that no person should live in poverty.

While taking due note of the Government’s statement, the Committee would like to remind that the Convention obliges the member States to maintain social security benefits that are paid at a flat rate, as in the United Kingdom, at the level at least equal to the minimum level laid down in its article 66. Notwithstanding this obligation, since the introduction of the contribution-based JSA in 1998 its rate has never attained the minimum prescribed by the Convention. The 2006 report of the Government also shows that the contribution-based JSA for a standard beneficiary (man with wife and two children) increased by the amount of the CB and the CTC represents only 41 per cent of the wage of an ordinary adult male labourer (£290 per week) and thus falls short of the minimum level of 45 per cent required by the Convention. Recalculated without the CTC, the amount of the contribution-based JSA represented in 2006 was only 27.13 per cent down from 40.04 per cent it attained in 2001. In absolute figures, the contribution-based JSA has increased over the five-year period covered by the detailed report (2001–06) from £53.05 to £57.45 or by 8.3 per cent, while the Retail Price Index has grown by 12.8 per cent and the index of earnings by 16.13 per cent. The Committee is concerned over the fact that the rate of the contribution-based JSA, which the Government considers to be pitched at the right level is consistently kept lower than the minimum standard established as far back as 1952, and does not even catch up with the growth of inflation and cost of living in the country. The Committee finds that the traditional logic and principles of social insurance are being reversed when persons entitled to contribution-based benefits receive benefits so low that they would be better off on social assistance.

Part V (Old age benefit). (a) Article 28(a) (Level of benefit). According to the 2006 report, the weekly rate of retirement pension for a man with 30 qualifying years would constitute 69 per cent of a full weekly pension (payable after 44 years’ contribution) and would thus amount to £58.13 plus £34.85 in respect of a wife of pension age. The resulting amount of £92.98 would represent 32.06 per cent of the reference wage (£290.00 per week). The Committee observes that this rate of retirement pension is far below the minimum level of 40 per cent prescribed by the Convention. It would therefore ask the Government to include in its next report, updated calculation of the rate of the old-age benefit for a standard beneficiary – man with wife of pension age without children who do not receive any child or family benefit.

(b) Reform of the state pension system. The 39th report on the Code refers to the Pensions Act 2007, which puts into law the reforms to the state pension system to take effect from 2010 and creates a new scheme of personal accounts with automatic enrolment, which will provide from 2012 on a simple way for people to save more and to take personal responsibility for the income they want in retirement. In a band of earnings of between around £5,000 a year and £33,000 a year, employees will contribute 4 per cent to the new scheme, employers – 3 per cent, and a further 1 per cent will be contributed in the form of normal tax relief. Up to 10 million people could be saving in a personal account and by retirement, their pension funds could be worth up to 25 per cent more because of lower charges. Reforms of the state pension system reduce the number of qualifying years needed to receive a full basic state pension (BSP) from 39 for women and 40 for men to 30 years for both. The state pension age will be gradually raised in line with gains in average life expectancy. The state pension age for women is due to rise from 60 to 65 between 2010 and 2020, to equalize with men’s state pension age. There will be a subsequent rise, between 2024 and 2046, to 68 for both men and women to reflect increasing longevity in society and secure the financial stability and sustainability of the state pension system for the long term. Annual cost-of-living increases in BSP will be linked with earnings rather than prices. By 2050, the BSP could be worth twice as much as if it had been linked to prices. The state pension will better reflect the different ways in which people contribute to society and will become fairer to those with caring responsibilities, who tend to be women. This will be achieved by abolishing the initial contribution conditions to the BSP, so that caring for children or the severely disabled will build their entitlement without having to make a minimum level of contributions, as well as by introducing a new weekly credit for those caring for children and a new contributory credit for those caring for severely disabled people for 20 hours or more per week. Anyone who has been in employment or caring throughout their working life could receive £135 a week at retirement in state pensions – which is £20 a week above the guaranteed income level. In 2010, 70 per cent of women reaching state pension age will be entitled to a full BSP, compared to 30 per cent now. By 2025, over 90 per cent of women and men reaching state pension age will be entitled to the full BSP – compared to about 80 per cent without reform.

The Committee observes that the above reform measures are taken with a long-term perspective in mind and will enter into force from 2010 on. In the meantime, it would like the Government to continue to provide information on the new developments in the pension reform, indicating, in particular, in respect of the standard beneficiary, the part of the replacement income in retirement which in the forecasted timeframe will be provided by the BSP and the second state pension, and the part which is expected to be supplied from the savings in the personal account.

Part X (Survivors’ benefit). (a) Article 62(a). The Committee notes that, in addition to the CB, the calculations made in the 2006 report include the CTC (£78.69 for both children). With the addition of the CTC, the replacement rate of the Widowed Parent’s Allowance (WPA) attains 48.6 per cent of the reference wage, which is above the minimum level of 40 per cent prescribed by the Convention, while, without the CTC, this rate would attain only 35.53 per cent The Committee notes that the amount of the CTC is composed of different elements and depends on the gross annual family income of the beneficiary. It would like the Government to show in its next report how the weekly rate of the CTC is calculated for the standard beneficiary with gross annual family income equal or higher than the gross annual wage of an ordinary adult male labourer determined under Article 66 of the Convention.

(b) Article 63, paragraphs 1(a) and 2(a). According to the 2006 report, the weekly rate of widow’s benefit is £84.25 basic WPA. To receive 100 per cent basic rate WPA, the late husband must have had qualifying years for about 90 per cent of the years in his working life. If the number of qualifying years is less than the number needed for a 100 per cent basic rate, the allowance is reduced accordingly; no allowance is payable if the number of qualifying years is less than a quarter of the number needed. The Committee would like to know how this condition might affect the level of benefit of a widow whose late husband had 15 qualifying years out of, for example, 25 years of working life, or the payment of a reduced benefit when he had only five such qualifying years.

[The Government is asked to reply in detail to the present comments in 2008.]

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The Committee took note of the information supplied by the Government in 2000 and 2001 in the reports on the Convention, as well as in its annual reports on the application of the European Code of Social Security, which have provided replies on a number of points raised in its previous comments. It has also noted the Government’s explanations concerning the new social security measures introduced by the Health Act, 1999, the Welfare Reform and Pensions Act, 1999, the Child Support, Pensions and Social Security Act, 2000, and the Health and Social Care Reform Act, 2002. The Committee would like the Government to provide additional information on the following points.

Part IV (Unemployment benefit). 1. Article 22 (in relation to Articles 66 and 67). With reference to its previous observation of 1998, the Committee notes that the great majority of claimants of unemployment benefit receive the income-based Jobseekers’ Allowance (JSA), the level of which is far greater than the replacement level established by the Convention, while only 14 per cent of the claimants receive the contribution-based JSA, which does not attain this level. In order to better appraise the situation, the Committee would like the Government to supply the information requested under Article 76, Title IV, of the report form for the Convention, indicating in particular, with respect to conditions of entitlement to the income-based JSA mentioned in section 3(1)(a) and (e) of the Jobseekers’ Act, how the "applicable amount" is determined in view of the requirements of Article 67(b) of the Convention, and how protection is ensured to a claimant whose partner, while working 24 hours a week or more, receives wages insufficient to maintain the couple "in health and decency", as required by Article 67(c) of the Convention. As regards the contribution-based JSA, the Committee notes that from April 2002 its rate for persons aged 25 or over has been increased from £53.05 to £53.95. It would like the Government to continue to supply information on the measures taken to increase the level of the contribution-based JSA at least to the minimum replacement level calculated in accordance with Article 66 of the Convention. Please indicate also the number of persons receiving the income-based JSA and the contribution-based JSA in comparison with the total number of unemployed in the country.

2. Misconduct. With reference to its observation, the Committee recalls that paragraph 39108 of the Adjudication Officer’s Guide (AOG) contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes that in the new wording of paragraph 34108 of the Decision Makers Guide (DMG), which has replaced paragraph 39108 of the AOG, this general guidance has been deleted and replaced by the provision stipulating that "an act or omission by a claimant which could have been avoided can be misconduct". To ascertain it, in the practical example of lateness for work, "the test is whether the lateness was preventable, or whether there was a failure on the part of the claimant to take care to attend at the proper time. Lateness which is outside the claimant’s control does not amount to misconduct. Lateness which results from a lack of care to take steps which would ensure attendance at the proper time does amount to misconduct." It appears from the new wording of this paragraph that the question of whether the claimant’s wrongdoing was deliberate, and therefore amounted to wilful misconduct sanctioned under the Convention, is substituted by the question of whether, in fact, it was preventable by the claimant by taking due care. The Committee observes in this respect that while prevention, by definition, will always constitute deliberate and wilful behaviour, failure to prevent wrongdoing, as well as failure to take due care, might not necessarily be wilful. For example, lateness which was caused by the unforeseen difficulty in finding the address of a new place of work, the location of which may have been poorly explained by the employer, could in principle have been prevented had the claimant taken care to give himself more travel time, but in no case such lateness would amount to deliberate misconduct. Similarly, in the logic of paragraph 34117 of the DMG, the situation where the claimant "reasonably, but mistakenly, believed" that the new place of work was situated at another address, would not be wilful misconduct, even though he might have taken additional care to double check the accurateness of the address, whereas the situation where the claimant "wilfully disobeyed a reasonable order by an employer or other supervisor (to come to the new place of work at a certain time), this will usually be misconduct." These examples of contradictory decisions which may be taken in application of guidance contained in paragraphs 34108 and 34117 considering preventable but non-deliberate lateness as misconduct in the first case and as not misconduct in the second case, show that the test of preventability linked to the duty of care is but another method used in the DMG to determine the degree of negligence or carelessness at which even non-deliberate wrongdoing could be considered as misconduct. "Whether negligence or carelessness is misconduct is a matter of degree - instructs the decision maker paragraph 34149 of the DMG, - if it was deliberate it is misconduct. Otherwise it depends on: (1) the responsibility, care and skill expected in the job; and (2) the seriousness of the act or omission; and (3) the extent of the claimant’s blame." The Committee observes that while the DMG in many instances draws a clear distinction between deliberate and non-deliberate misconduct of the claimant, such as negligence and carelessness, it nevertheless requires the decision-makers to apply sanctions equally in those cases where misconduct, in fact, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It is in judging this otherwise non-deliberate behaviour of the claimant as "particularly careless" to the extent that it can be considered deliberate, as explained by the Government in relation to the example in paragraph 34109 of the DMG, that the decision-makers face the risk of sanctioning with equally fervent behaviour which, although faulty for the purpose of termination of employment relations by the employer, may not amount to "wilful misconduct" for the purpose of the suspension of the unemployment benefit by the public authority responsible for provision of protection against unemployment on conditions laid down by the Convention. The Committee considers that such risk could be avoided if the decision-makers, in judging misconduct by such criteria as negligence, carelessness or preventability, would first of all be required to establish the deliberate (wilful) character of the claimant’s wrongdoing, so as to distinguish, as was the very purpose of the modification of paragraph 34108 of the DMG in the Government’s wording, the "circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care". It therefore once again expresses the hope that the Government will give further consideration to clarifying the wording of the relevant paragraphs of the DMG, so as to limit the resulting decisions of suspension of unemployment benefit only to cases of misconduct constituting wilfulness, as provided for by Article 69(f) of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government’s attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In its latest reports, the Government continues to use for benefit calculation this now largely obsolete and fictitious minimum wage, which amounted to £165.59 per week in 2000 and to £171.22 in 2001. It indicates however that, since 1 April 1999, the national minimum wage was introduced, which for workers aged 22 or over corresponded from 1 October 2000 to £144.30 and from 1 October 2001 to £159.90. It appears from comparing these figures that this real national minimum wage is quickly closing up on the fictitious reference minimum wage of the engineering labourer, the difference in fact decreasing from £21.29 in 2000 to only £11.32 in 2001. On the other side, the fictitious reference wage is increasingly falling behind real average wages of men in manufacturing, which grew from £441.70 in April 2000 to £463.90 in April 2001, according to the ILO Bulletin of Labour Statistics 2002-03 (page 139). In the light of these trends, where the reference wage moves towards the lowest reference point provided by the national minimum wage and away from the average earnings in the industry in question, its further use might give an increasingly distorted picture of reality for the purpose of establishing international comparisons of the replacement levels provided by the United Kingdom’s social security benefits in relation to the minimums fixed by the Convention. It becomes evident already in comparing the situation of the United Kingdom to that of the Isle of Man where the JSA scheme and the amounts payable are the same but the reference wage is much higher as it represents not the minimum but the average wage of the ordinary adult general labourer (£219.30 for a 37-hour week from 1 September 2000). The Committee wishes to point out that such comparisons of the level of countries’ compliance with the minimums fixed by Article 66 of the Convention will be meaningful only if the reference wage used is equal to the wage of an ordinary adult male labourer selected in accordance with paragraph 4 or 5 of this Article. Moreover, this wage shall be recalculated anew each time the Government is called to provide updated statistics on the level of the benefits, that is every five years when it is submitting a detailed report on the application of the Convention. Thus, if the Government wishes to continue to select an ordinary adult male labourer from the mechanical engineering industry in accordance with paragraph 4(a) of Article 66, it has to determine the wage of the engineering labourer, averaged for different regions, on the basis of the currently applicable rates of wages for normal hours of work fixed by collective agreements, regulations or custom, including cost-of-living allowances, as stipulated in paragraph 7 of this Article. According to Title I under Article 66 of the report form on the Convention, the data shall be given for the same time basis (month, year) as used for calculating the benefit and the family allowance and for which the most recent statistics are available within the period covered by the report. These very precise requirements of the Convention make it clear that the reference wage of an ordinary adult male engineering labourer calculated for the year 2001, for example, might not necessarily coincide with the adjusted minimum wage in mechanical engineering established 15 years ago, or, for that matter, with any other minimum wage established at the industry or national level. The Committee is therefore bound to conclude that the method presently used by the Government for determining the reference wage provides only an approximation which does not allow to clearly ascertain whether the rate of the benefit for a standard beneficiary attains the level prescribed by the Convention. In the light of these explanations, it would like the Government to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention and to base the calculation of the benefits’ level in its next report on the reference wage of a standard beneficiary established according to one of the methods offered by the Convention.

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Part IV (Unemployment benefit). In its previous comments, the Committee has been questioning certain provisions authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by wilful misconduct. It referred in particular to examples of misconduct in the Adjudication Officer’s Guide (AOG) where it was caused not by deliberate acts of the claimant, but rather by his or her negligence or carelessness. For example, claimants who were accidentally late for work may have been found guilty of misconduct, even if there was no deliberate intention to be late (paragraph 39108 of the AOG). The Committee has requested the Government to modify the Guide so as to bring it in line with the adjudication officers’ case law sanctioning in practice only wilful misconduct in accordance with Article 69(f) of the Convention.

In its report of 2000, the Government agreed that in this context "wilful" was tantamount to "deliberate" and accepted that paragraph 39108 of the AOG did not properly distinguish between circumstances that were beyond the claimant’s control and circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care. Lateness for work should only constitute misconduct if there was evidence that the circumstances which caused it were within the claimant’s control. The Government was therefore grateful to the Committee for drawing the ambiguity of paragraph 39108 to its attention, and undertook to issue an appropriate amendment at the earliest opportunity. In its report of 2001, the Government indicated that the former AOG has been replaced by the Decision Makers Guide (DMG), in which the wording of the corresponding paragraph has been amended.

The Committee recalls that paragraph 39108 of the AOG contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes with satisfaction that in the new wording of paragraph 34108 of the DMG, which has replaced paragraph 39108 of the AOG, this general guidance has been deleted, thus precluding decisions which would tend to qualify as misconduct non-deliberate and accidental wrongdoing of claimants. The Committee raises a number of other points in the request addressed directly to the Government.

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With reference to its previous comments, the Committee notes the information provided by the Government in reply to the questions raised in its direct request of 1997, in particular concerning Part XII of the Convention, as well as statistics on the amount of the old-age benefit (Part V) for a standard beneficiary.

Part III (Sickness benefit) of the Convention. The Committee notes from the Government's reply to its direct request of 1997 that few employers have yet taken up the option available since April 1997 not to operate the Statutory Sick Pay scheme because it would mean changing their payroll systems. It hopes that the Government would continue in its future reports to provide information on any developments in this respect.

Part IV (Unemployment benefit) of the Convention, Articles 20 and 24 (in relation to Article 69). 1. Suitable employment. In previous comments the Committee noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept to which Article 20 of the Convention refers) was replaced by the apparently more restrictive concept of disqualifying a person for refusing employment notified by the employment service "without good cause", which was carried forward into the jobseekers' legislation (section 19(6)(c) of the Jobseekers Act 1995). In view of the fact that unemployed persons are authorized during a limited period of one to 13 weeks to refuse to seek or accept any employment which does not correspond to their usual occupation and for which the level of remuneration is lower than they are accustomed to receiving (section 6(5) of the Act and Regulation 16 of the Jobseeker's Allowance Regulations 1996), the Committee expressed the hope that the Government would indicate the measures taken or contemplated to ensure that, in all cases covered by Article 20 of the Convention (in relation to Article 69), unemployment benefit is paid at least during the minimum period of 13 weeks within a period of 12 months or in each case of suspension of earnings, in accordance with Article 24 of the Convention.

In the report on Convention No. 44, the Government assures the Committee that there is no question of the jobseeker's allowance being withheld unreasonably. The Employment Service acts responsibly, and does not set out to offer people obviously inappropriate jobs; the issue of the "suitability" of an employment offer would also have to be taken into account in establishing whether a refusal of such offer was without good cause. In that respect, the Government believes that newly unemployed people should be given a reasonable chance of returning to their former type of work and rate of pay. There is therefore a "permitted period" from one to 13 weeks during which they can refuse other types of work and work which pays less than they used to receive. According to Regulation 16(2), in determining the length of a permitted period, an adjudication officer must take into account the jobseeker's usual occupation and any relevant skills or qualifications which he has, the length of the period during which he has undergone training relevant to that occupation, the length of the period during which he has been employed in that occupation and the period since he was so employed, and the availability and location of employment in that occupation. A claimant whose previous "usual occupation" had been of only short duration has a comparatively precarious connection with the labour market, and it would not be in his own interest to hold out for 13 weeks for an occupation and rate of pay which in the reality of his circumstances will become unattainable after a significantly shorter time. It is therefore appropriate that the length of a permitted period should continue to be determined by an independent adjudication officer. Furthermore, the Government refers to other possibilities for a jobseeker to restrict his availability for employment outside the permitted period providing he has reasonable prospects of securing employment notwithstanding those restrictions in the light in particular of his skills, qualifications and experience, the type and number of vacancies within daily travelling distance from his home and the length of time for which he has been unemployed (Regulations 8, 9 and 10). The Government believes that these safeguards offer adequate protection to claimants. It also states that while records are not kept on the number of claimants with a permitted period of less than 13 weeks, it is unlikely to be many.

The Committee notes this information with interest. It observes in particular that, in relation to the notion of "suitable employment" referred to in Article 20 of the Convention, the possibility, under the permitted period of up to 13 weeks provided for in Regulation 16 of the Jobseeker's Allowance Regulations 1996 for a jobseeker to restrict his availability for employment to his "usual occupation" with the same level of remuneration ensures during this period a sufficient degree of protection to the person concerned. The criteria taken into consideration under Regulation 16(2) in the determination by an adjudication officer of the duration of the permitted period are in line with those normally used in assessing the suitability of employment. Moreover, after the permitted period and until the expiration of six months from the date of claim, jobseekers may also restrict their availability for employment by placing restriction in particular on the level of remuneration, providing they can show that they have reasonable prospects for securing employment notwithstanding those restrictions (Regulations 8 and 9). The Committee notes however that the decisions concerning the duration of the permitted period, as well as the employability of a jobseeker in the light of the restrictions made, are placed under the responsibility of adjudication officers, who thus have broad discretion. It would therefore like to be informed on whether new guidelines have been drawn up for the adjudication officers since the entry into force of the jobseekers' legislation on the above-mentioned matters (availability for employment). If so, it would like the Government to supply a copy of such guidelines, as well as to provide statistics on the number of jobseekers to whom a permitted period was granted in relation to the total number of newly unemployed. Furthermore, in view of the Government's statement under Convention No. 44 that the Employment Service does not offer people inappropriate jobs, the Committee would like the Government to indicate in its next report the criteria taken into consideration by the Employment Service in making concrete offers of employment to the jobseekers concerned.

2. Actively seeking employment. The Committee recalls that in the year to 31 March 1995 the number of disallowances pronounced by adjudication officers for failure to seek work actively was 21,460, which, according to the Government, was a comparatively modest figure taking into account that it constituted less than 1 per cent of the overall level of claimant unemployment in the year in question and that a claimant could incur more than one adverse decision in a year. It notes, however, that in the subsequent periods the number of adverse decisions on the actively seeking employment question has increased substantially to attain 32,274 in 1996-97 and 63,336 in 1997-98. According to the Government, the rise can be explained by the fact that jobseekers should now be interviewed about their job search activity each time they attend, which has increased the likelihood that instances of apparently insufficient job search are identified and submitted to adjudication. In addition, in 1997-98 the proposed terms of 3,538 jobseeker's agreements were also referred to adjudication. The Committee would like the Government to continue to supply updated statistical information on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons in comparison with the total number of jobseekers, as well as on the number of appeals lodged against the adverse decisions of adjudication officers and their outcome.

3. The Committee recalls that in the comments of November 1996 the Trades Union Congress drew attention to the possible inconsistency between the incapacity for the work test adopted in 1995 and the availability for the employment test under the Jobseekers Act, indicating that "disabled people are increasingly concerned that they will fall between a tighter incapacity test, which denies them Incapacity Benefit, and inability to meet the terms of the new availability for the work test in JSA". The TUC mentioned in particular three categories of people which may be affected: (i) those with conditions not recognized by the Incapacity Benefit test of incapacity; (ii) those with conditions which are not in any way incapacitating, but which do lead to their placing restrictions on their availability -- someone with sickle cell anaemia, for instance, should not be required to be available for work in cold, wet conditions, as this could bring on a crisis; (iii) people with mental health problems which may make them seem reluctant to apply for jobs, and thus not be available for work. In its reply of 5 December 1996, the Government stated that an Incapacity Benefit decision that someone is capable of work automatically applies to JSA. There is therefore no possibility that people can fail to qualify for both benefits on capacity grounds. Moreover, JSA legislation specifically provides that jobseekers may restrict their availability to certain types of employment provided that the restrictions are reasonable in the light of their physical or mental condition. The Committee takes note of this information.

4. Misconduct. In its previous comments in connection with the observations formulated by the TUC in 1995 and 1996, the Committee raised a number of questions concerning the provisions of the social security legislation authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by the wilful misconduct. The Committee notes from the Government's report that the provisions in question have been carried over to the Jobseekers Act and are now incorporated in section 19(1), (3) and (6)(a) of this Act prescribing suspension of benefit from one up to 26 weeks where the claimant has lost his employment as an employed earner through misconduct, the actual period in each case being at the discretion of the adjudication officer, who makes the decision in accordance with Regulation 70 of the Jobseeker's Allowance Regulations 1996 and the relevant adjudication officers' guidance on the interpretation of misconduct ("Employment lost through misconduct AOG 39060-39219. Vol. 6, Amendment 5, January 98"), a copy of which was supplied by the Government.

As regards the interpretation of "misconduct", the Government confirms that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. In the Government's view, in this context "misconduct" will always in effect amount to wilful misconduct and will not include, within the meaning of section 19 of the Act, certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. Stating that in practice no distinction can be drawn between "misconduct" and "wilful misconduct", and that the question of whether an employee has received a warning prior to dismissal is irrelevant, the Government refers to the attached guidance for the adjudication officers on the interpretation of misconduct.

According to this guidance, the adjudication officer decides what is misconduct (39075). The word "misconduct" is not defined in social security legislation, but taking into account the relationship of employer and employee and rights and duties of both, misconduct must be conduct that can fairly be described as blameworthy and wrong (39105). The adjudicating authorities also decide whether the claimant's actions are misconduct (39109). Even when claimants have not deliberately done anything wrong, this can still amount to misconduct. For example, claimants who were accidentally late for work may well be guilty of misconduct, even if there was no deliberate intention to be late (39108). Furthermore, it does not matter that the employer has not described the claimant's actions as misconduct. For example, an employee would have lost his employment through misconduct if it becomes clear that he had been particularly careless (39109). Whether negligence or carelessness is misconduct is a matter of degree. If it was deliberate it is misconduct, but otherwise it depends on the responsibility, care and skill expected in the job, and the seriousness of the act or omission, and the extent of the claimant's blame to be established by the adjudication officer (39149). Besides insolence, quarrelling, sculling or fighting and other forms of offensive behaviour which are misconduct (39178), the use of bad language may also be misconduct, particularly when it is used in circumstances when it is known, or might be expected, to give offence to others (39179).

The Committee observes that the interpretation of "misconduct", within the meaning of section 19 of the Jobseekers Act, given by the above-mentioned guidance, draws a clear distinction, illustrated with concrete practical examples, between deliberate (wilful) and non-deliberate misconduct of the claimant, such as negligence and carelessness, which, although faulty, could not be considered as wilful within the meaning of Article 69(f) of the Convention. It also observes that said guidance obliges the adjudication officers to apply sanctions equally in cases where misconduct was not in fact wilful misconduct, leaving the determination of the severity of the sanction imposed at their discretion. The Committee notes however the Government's statement that the effect of the case-law is that a sanction should only be applied if the misconduct was in fact wilful misconduct. It therefore hopes that in the light of this statement the Government will reconsider the matter and will modify the adjudication officers' guidance, so as to ensure that suspension of unemployment benefit is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention.

The Committee further notes that, under section 19(1), (2) and (5)(c) of the Jobseekers Act, suspension of benefit is also prescribed in circumstances where the claimant has lost his place on a training scheme or employment programme through misconduct, the duration of sanction in this case being fixed by Regulation 69 of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to specify whether the same rules for determining what is misconduct are applied in this case, taking into account that the above-mentioned guidance covers loss of employment and does not deal with situations where misconduct has led to loss of a place on a training scheme or employment programme. If not, please indicate whether a special guidance exists for such cases and supply a copy of it.

Finally, in relation with the TUC's comments, the Committee notes with interest the statement by the Government that payment of benefit is no longer suspended while a case of misconduct is under consideration. If it appears that a claimant may have lost his employment through misconduct, payment of the jobseeker's allowance continues in full until an adjudication officer determines the question. The Committee would like the Government to supply a copy of the provision establishing this rule.

5. The Committee notes that, according to sections 1(a) and 4(1)(a) of the Social Security Act, 1998, the functions of adjudication officers are now transferred to the Secretary of State and the functions of social security appeal tribunals are transferred to unified appeal tribunals constituted under this Act. Under section 8(1)(a) and (c) of this Act, it shall be for the Secretary of State to decide any claim for a relevant benefit which includes a jobseeker's allowance. Regulations to be adopted under sections 21 to 23 of the Act may further provide for suspending payments of a relevant benefit, in whole or in part, in prescribed circumstances as well as for failure to furnish information. Finally, under section 81 of the Act, the Secretary of State shall prepare and lay before each House of Parliament a report on the standards achieved by him in the making of decisions against which an appeal lies to an appeal tribunal. The Committee would like the Government to explain the implications that these new arrangements might have on the consideration of the claims for jobseeker's allowance and to supply a copy of the Regulations to be adopted under the Act as well as a copy of the above-mentioned report of the Secretary of State, once these documents are available.

Article 24, paragraph 3. The Committee notes that Regulation 46(2) of the Jobseeker's Allowance Regulations specifies that the number of waiting days is three, but that, according to the Government's report this number was increased to seven by section 2 of the Jobseeker's Allowance (Amendment) Regulations, 1998 (No. 71), which however were revoked on 1 June 1998 by the Social Security (Miscellaneous Amendments) (No. 4) Regulations, 1998 (SI 1998, No. 1174). The Committee would like to receive a copy of these later Regulations. It would also like the Government to indicate, with reference to corresponding provisions, how the term "day" is defined for the purposes of Regulation 46(2) and, in particular, whether the provisions of Regulation 47(4), as amended by section 14 of the Jobseeker's Allowance and Income Support (General) (Amendement) Regulations, 1996, No. 1517, are applicable in this case.

Part X (Survivors' benefit). In view of the concern of the TUC that the Government may intend to abolish social insurance survivors' benefits, the Committee would like the Government to state its position in this respect in the light of the corresponding provisions of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). With reference to its direct request of 1996, the Committee notes the information on the method of uprating the nationally negotiated minimum wage of an engineering labourer for the year 1987 which is used by the Government to determine the reference wage of an ordinary adult male labourer for the purpose of calculating the level of periodical benefits. It recalls that comparing the current rate of benefit to the now largely obsolete minimum wage of 1987, adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period, would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. The Committee notes however that in its report on Convention No. 44 the Government expresses the intention to introduce a national minimum wage as soon as convenient. It would like the Government to keep it informed on any progress achieved in this respect.

[The Government is requested to report in detail in 2000.]

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With reference to its previous comments, the Committee notes the information provided by the Government in the reports on Conventions Nos. 102 and 44. It also notes the new comments on the application of the Convention by the Trade Unions Congress (TUC) received by the Office on 9 November 1998.

With respect to Part IV (Unemployment benefit), the TUC draws attention to the fact that, according to the statistics given in the Government's report, a man with a dependant wife and two children, who is not entitled to a means-tested jobseeker's allowance which amounts to 71.89 per cent of the standard wage plus family benefit, would receive contributory jobseeker's allowance worth only 41 per cent of the standard wage plus family benefit. The contributory jobseeker's allowance is below the Convention's minimum standards (45 per cent of the reference wage for a standard beneficiary). According to the TUC, there are several reasons why such a man might not be entitled to means-tested jobseeker's allowance. In particular, a worker who has been made redundant, and who has received 8,000 or more in compensation, would not be entitled to a means-tested allowance. For a person aged under 25 the situation would be worse, as he would receive a lower rate of benefit.

The Committee notes that, according to the information provided by the Government, the rules for the calculation of the income-based jobseeker's allowance, in most cases, are identical to those for income support. The amount of the income-based allowance varies depending on the age of the claimant and whether he or she is single or has a partner and children, and, where appropriate, mortgage interest payments. If the claimant has other income, benefit will in most cases be reduced by the amount of that income. It will also be reduced if the claimant has capital between 3,000 and 8,000. The Government adds that there will be no entitlement if this capital exceeds 8,000 or if the claimant's partner works 24 hours a week or more. The Committee notes in this respect that, according to section 12 of the Jobseekers Act 1995, in relation to a claim for jobseeker's allowance, the income and capital of a person shall be calculated or estimated in accordance with prescribed rules and that circumstances may be prescribed in which (a) a person is treated as possessing capital or income which he does not possess; (b) capital or income which a person does possess is to be disregarded; (c) income is to be treated as capital; (d) capital is to be treated as income. Section 13 of the Act further stipulates that no person shall be entitled to an income-based jobseeker's allowance if his capital, or a prescribed part of it, exceeds the prescribed amount, and that the income and capital of any member of the claimant's family shall be treated as the income and capital of the claimant. Detailed provisions implementing the above sections of the Act are included in the Jobseeker's Allowance Regulations 1996.

The Committee recalls in this respect that Article 67 read in conjunction with Article 22, paragraph 2, of the Convention allows the reduction of unemployment benefit where the beneficiary or his family has financial means under certain conditions. In particular, Article 67 provides that the rate of the benefit, which shall be determined according to a prescribed scale, may be reduced only to the extent by which the other means of the family of the beneficiary exceed substantial amounts prescribed by the legislation or fixed by the public authorities, so that the beneficiary should be allowed to have a reasonable amount of means of his own other than unemployment benefit. The total of the benefit and any other means after deduction of the substantial amounts shall be sufficient to maintain the family of the beneficiary in health and decency and shall not be less than the benefit calculated in accordance with Article 66 (45 per cent of the reference wage taking account of the family allowance paid during the employment and the contingency). In view of the complexity of the legislation and of the Government's statement under Convention No. 44 that in most cases benefit is reduced by the amount of any additional income of the claimant, the Committee would like the Government to supply full information on the manner in which the rules for the calculation of the income-based jobseeker's allowance take into account these provisions of the Convention and, in particular, the requirement that the reduction of the benefit is only authorized when the means of the beneficiary and his family exceed the substantial amounts referred to above. Please also supply the information requested under Article 67, Titles I and II, and Article 76, Title IV, by the report form of the Convention together with statistics on the number of persons receiving the income-based jobseeker's allowance. Furthermore, it would also like the Government to provide statistics on the level of this allowance for claimants under 25 years of age, taking into account that the income-based jobseeker's allowance varies depending on the age of the claimant, as well as to explain how the protection guaranteed by the Convention is ensured with respect of a claimant whose partner, while working 24 hours a week or more, receive wages which are below the level of the substantial amounts and the benefit calculated under Article 67 of the Convention. In addition, the Committee wishes to be informed of any measure taken by the Government to increase the level of the contribution-based jobseeker's allowance. Finally, noting the Government's intention to introduce a national minimum wage as soon as convenient and to make corresponding modifications in the jobseekers' legislation, it expresses the hope that the Government would provide information on any progress achieved in this respect.

The Committee raises a number of other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2000.]

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With reference to its observation, the Committee trusts that the Government's next report will contain full information on the issues raised in its previous direct request, as well as on the following additional points.

Part III (Sickness benefit) of the Convention. Referring to the employers' obligation to pay statutory sick pay to their employees for a period of sickness lasting up to 28 weeks, the Government indicates in its twenty-ninth report on the application of the European Code of Social Security that, from 6 April 1997, employers who pay wages or occupational sick pay to their employees at or above the statutory sick pay rate, are free to decide whether or not to operate the statutory sick pay scheme. This arrangement simplifies employers' administration by eliminating the need to keep two sets of sickness records. At the same time employees' rights to sick pay are protected because the employer has to pay statutory sick pay if his own arrangements are not sufficient. The Committee notes this information. It would like the Government to provide information on the implementation of these measures in practice, including statistics on the number of employers who have thus ceased to operate the statutory sick pay scheme.

Part XII (Equality of treatment of non-national residents), Article 68. The Committee notes, from the Government's report on the Code, that, from October 1996, general entitlement to child benefit has been removed for persons coming from abroad who are subject to immigration control. According to the report, this restriction does not apply to nationals (and their families) of State Contracting Parties to the Agreement on the European Economic Area; workers (and their families) who are nationals of a State with which the Community has concluded an agreement under Article 238 of the Treaty establishing the European Community; refugees recognized under Article 1 of the Geneva Convention relating to the Status of Refugees; or to those who have been granted settled status or given leave to enter or remain in the United Kingdom. Persons from abroad who would be affected by these new rules but who are already receiving child benefit can continue to receive the benefit until their claim is reviewed. The Committee would like the Government to identify and supply the relevant legislative provisions introducing these rules as well as the categories of foreign nationals legally residing in the country that would be affected by them in the light of this Article of the Convention.

[The Government is asked to report in detail in 1998.]

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The Committee takes note of the report and of the various new legislative provisions supplied by the Government.

In reply to the Committee's previous comments, the Government states that it is currently in the process of examining the issues raised very carefully, but at this stage it is not yet in a position to respond in detail to the Committee's request for information. The Government reassures however that it will provide a full and detailed response on all of the issues following a review of its position in the light of the Committee's comments. The Committee takes good note of this statement. It hopes that the Government will not fail to supply a detailed report for its next session containing full information on the important questions raised in its direct requests of 1996 and 1997, as well as any additional information it would like to provide with respect to the comments on the application of the Convention received from the Trades Union Council on 28 November 1996. The Committee recalls in this respect that, in order to be able to examine in detail the Jobseekers Act, which entered into force in October 1996, together with its implementing regulations, which are of a particularly voluminous and complex nature, it should dispose of the full information on the impact of the new legislation on the application of each Article of Part IV (Unemployment benefit) and other relevant Parts of the Convention, including statistics, provided in the manner set out in the report form. It trusts that such information would be supplied in the Government's next report and that it would deal in particular with questions of the definition of suitable employment and disqualification from unemployment benefit, in the light of the Committee's previous comments and the observations made by the TUC.

[The Government is asked to report in detail in 1998.]

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With reference to its observation, the Committee draws the Government's attention to the following points:

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (with particular reference to Article 69). 1. In its previous comments the Committee had noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept contained in Article 20 of the Convention) was replaced by the more restrictive concept of refusing employment "without good cause". It had referred in particular to the Social Security Contributions and Benefits Act of 1992, sections 28 and 29 (the latter of which authorizes newly unemployed persons during a "permitted period" of up to 13 weeks to refuse to seek or accept employment which does not correspond to their usual occupation and earnings). The Committee had asked the Government to indicate the measures taken under the legislation then in force to ensure that, in all cases covered by Article 20 of the Convention, the period for which unemployment benefit is provided is at least 13 weeks within a period of 12 months, in accordance with Article 24 of the Convention.

The Committee notes that the Government's report does not contain any new information in this respect but refers to the information supplied under Convention No. 44. The Government has provided the texts of the new Jobseekers Act and of the regulations made thereunder, which raise new questions. The Committee intends to examine in detail the Jobseekers Act, which entered into force in October 1996, together with the implementing regulations, at its next session, when it will have received full information on their impact on the application of each Article of Part IV of the Convention, including on the question recalled above, in the manner set out in the report form of the Convention.

2. In its previous comments, the Committee noted that section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992 provides that a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his "misconduct", whereas Article 69(f) of the Convention only authorizes such a suspension where the contingency has been caused by the wilful misconduct of the person concerned. It therefore requested the Government to provide copies of any relevant administrative or judicial decisions which may shed light on the scope of said section 28(1)(a). In addition, the Committee requested detailed information in reply to the TUC's reference to a number of cases of suspension or disqualification from employment benefit of insured persons who left their employment for reasons that the TUC considered to be legitimate (Article 69(i) of the Convention).

In reply, the Government refers to the Social Security Commissioner's Decisions R(U) 8/57 and 2/77, which have the status of case-law and contain definitions of "misconduct". The Government considers that case-law on the interpretation of "misconduct" shows that a sanction should only be applied if the misconduct was wilful misconduct. As regards cases of disqualification mentioned by the TUC, the Government states that these cases were not identified, and therefore the facts that were available to the adjudication officer in each case are not known. Moreover, the Government is unable to comment on decisions made by independent adjudication authorities.

The Committee takes note of this information. It recalls that by ratifying the Convention a State accepts the obligation to ensure its implementation both in law and practice as determined by the competent bodies, including those which are independent bodies. The Government has thus a duty to supply information on the practical application of the Convention requested by the Committee. The Committee notes, on the other hand, that under Decision R(U) 2/77 the Chief Commissioner defined misconduct as: "conduct which is causally connected, but not directly connected with the employment, and having regard to the relationship of employer and employee and the rights and duties of both, can fairly be described as blameworthy, reprehensible and wrong". The Committee considers from this Decision and from Decision R(U) 8/57, previously communicated by the Government, that the notion of misconduct may also apply to certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f). It is therefore important to know whether an employee dismissed for cause had received a warning prior to dismissal, as repeated misconduct in light of an issued warning would more clearly indicate a level of intent inherent in the notion of wilfulness.

The Committee notes with interest the detailed information concerning the training and monitoring of adjudication officers. It welcomes the guidance given to the adjudication officers on the interpretation of legislation and regulations. It hopes that the competent authority will issue guidelines on the interpretation of misconduct for suspension of unemployment benefit, so as to ensure that such suspension is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention. The Committee hopes that the Government's next report will contain information on progress made in this respect. In addition, the Committee requests the Government to supply information on the application in practice of Article 69(i) of the Convention, as well as on the new comment made by the TUC.

3. In reply to the Committee's previous comments concerning section 57 of the Social Security Contributions and Benefits Act 1992 which subjects the entitlement to unemployment benefit to the requirement that the insured person must be "actively seeking work", the Government indicated in its report of 1995 that the new Jobseekers Act carries forward this requirement with respect to the Jobseekers Allowance (JSA), to be further detailed in regulations. It added that, under the new legislation, the persons concerned must sign a Jobseeking Agreement setting out their plans to find employment and that, besides job search, actions improving employability will also count. The Government has also indicated that, in the year to 31 March 1995, 21,460 claims were disallowed under the previous legislation by adjudication officers because the claimant had failed to actively seek work, but that only about 2 per cent of adverse decisions by adjudication officers on all questions were the subject of an appeal by the claimant to a Social Security Appeal Tribunal. The Committee notes this information, in particular the apparently high number of claims denied for failure to actively seek work. It also notes that under section 1(2)(b) and (c) of the Jobseekers Act, the entitlement to the JSA is subjected, inter alia, to the condition that a claimant "has entered into a jobseekers' agreement which remains in force" and is "actively seeking employment". These conditions are further detailed in Chapters III and V of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to provide detailed information on the implementation of these provisions in practice, as well as to continue to supply up-to-date statistics on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons.

Part V (Old-age benefit). The Committee notes that, according to the rules for the calculation of the state retirement pension explained in the report, full benefit is granted to a beneficiary who has completed, prior to the contingency, a qualifying period of about ninth-tenths of the number of years in the person's working life, which, normally, comprises the period from the beginning of the tax year in which the 16th birthday falls to the end of the tax year in which the 64th (59th for women) birthday falls. If the number of qualifying years is less than the number of years required for a standard-rate pension, a proportionally reduced-rate pension is payable. The Committee understands therefore that the statistics on the amount of the benefit given in the report correspond to a full pension payable to a beneficiary who has completed 44 (for men) and 39 (for women) qualifying years, and not to a pro-rated pension which is achieved after 30 qualifying years. It notes, however, from the statistics contained in the report, that a basic state pension paid after 30 years of contribution would still be above the level prescribed by the Convention. In this situation, the Committee hopes that in the future the Government will provide statistics on the amount of the old-age benefit for a standard beneficiary who has completed a qualifying period of 30 years of contribution or employment, as required by Article 29, paragraph 1(a), of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government's attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In reply, the Government stated that to change the basis of the standard wage for the purposes of Article 66 of the Convention would lead to inconsistency and would have a distorting effect on comparisons. For these reasons it has no alternative but to continue uprating the previous minimum wage, which has always been regarded as the appropriate reference point against which to compare social security benefits, by the increase in the average earnings index for mechanical engineers for the corresponding period.

The Committee notes this information. It wishes to point out in this respect that paragraph 7 of Article 66 provides that the wage of the ordinary adult male labourer shall be determined on the basis of the rates of wages for normal hours of work fixed by collective agreements, by or in pursuance of national laws or regulations, where applicable, or by custom, including cost-of-living allowances if any; where such rates differ by region the median rate shall be taken. Comparing the current rate of benefit to the now largely obsolete minimum wage of 1987 adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. In light of these explanations, the Committee once again expresses the hope that the Government will be able to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention. In the meantime, the Committee would like the Government to supply detailed information on the method currently used to uprate the minimum wage of an engineering labourer, including the figures used for the most recent calculation and their source.

[The Government is asked to report in detail in 1997.]

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With reference to its previous comments which it has been making for a number of years, the Committee notes the information supplied by the Government in its reports of 1995 and 1996. It also notes the new comments made by the Trades Union Congress (TUC) concerning the application of this Convention, which were received on 28 November 1996. The Committee has decided to examine these comments, as well as the response of the Government which was received on 9 December 1996, at its next session. In addition, the Committee hopes that the Government's next report will contain detailed information on important issues raised in a new direct request.

[(The Government is asked to report in detail in 1997.]

CMNT_TITLE

The Committee notes the Government's reply to its previous comments and has also examined the texts of laws and regulations supplied with the report. It also notes the comments made by the Trades Union Congress (TUC), which were transmitted by the Government with its communication dated 1 February 1995. These comments relate to the application of Article 69 of the Convention, which was one of the points raised in its previous comments.

Following its examination of the information supplied by the Government and the comments made by the TUC, the Committee wishes to point out the following:

1. Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (particularly in relation with Article 69).

(a) In its previous comments, the Committee noted that section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992 provides that a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his "misconduct", whereas Article 69(f) of the Convention only authorizes such a suspension where the contingency has been caused by the wilful misconduct of the person concerned. It therefore requested the Government to indicate whether the term "misconduct" used in the 1992 Act was interpreted in case-law and in practice as equivalent to "wilful misconduct", as it used to be in the past, according to earlier information provided by the Government.

In its reply, the Government states that in practice decisions to suspend unemployment benefit on the grounds of loss of employment through the misconduct of the person concerned are made on the understanding that the misconduct was wilful. The Committee takes due note of this statement. It notes, however, that according to the explanations provided by the Government, the concept of misconduct can also apply to certain types of carelessness which may justify withholding unemployment benefit because the person concerned has lost his employment through his own avoidable fault. Furthermore, the Committee also notes the comments of the TUC to the effect that section 28(1)(a) of the above Act of 1992 would not always appear to be interpreted in practice within the meaning of the Convention. In these conditions, the Committee requests the Government to provide copies of any relevant administrative or judicial decisions which may shed light on the scope of section 28(1)(a) of the above Act of 1992, and to provide detailed information in reply to the TUC's comments, which also refer to a number of cases of the suspension or disqualification from unemployment benefit of insured persons who left their employment for reasons that the TUC considers to be legitimate but which were not considered to be so by the adjudication officers (Article 69(i) of the Convention). Finally, the Committee requests the Government to indicate whether, and if so under which provisions, in cases where persons have been dismissed on the grounds of an avoidable fault, the suspension of the unemployment benefit is subject to the condition that the worker received a warning prior to dismissal.

(b) The Government recalls that entitlement to unemployment benefit is subject, among other conditions, to the requirement that the insured person must be "actively seeking work" (section 57 of the above Act of 1992), but that the decision to disallow benefit is only taken by the adjudication officers on the basis that the individual concerned has not taken the necessary steps regarded as reasonable in his or her case. It adds, in its report on the application of the European Code of Social Security, that decisions to disallow benefits carry the right of appeal to independent appeal tribunals and that it has not been viable to attempt a specific classification of the reasons for disallowing benefit in such cases. Furthermore, the Government confirms that the regulations issued under section 57(3) of the Social Security Contributions and Benefits Act of 1992 to determine the steps that unemployed persons are required to take in any week in order to be regarded as actively seeking work are still contained in Regulation 12B of the Social Security (Unemployment, Sickness and Invalidity Benefits) Regulations of 1983, as amended. The Committee notes this information. It also notes the text of the guidance transmitted by the Government, which contains the criteria on which adjudication officers have to determine whether the steps taken by unemployed persons to "actively seek" work fulfil the requirements for entitlement to benefit. This guidance is regularly updated as case-law develops in this field. The Committee requests the Government to continue supplying information on any new regulations or developments in this field. It also requests the Government to supply information on the number of cases in which unemployment benefit has been suspended on the grounds that the unemployed person has not taken the necessary steps considered reasonable in his or her case, and on the number of appeals that have been made and their outcome.

(c) The Committee also noted in its previous comments that Regulation 12E, introduced by Regulation No. 1324 of 1989, as well as section 28 of the Social Security Contributions and Benefits Act of 1992, amended the rule whereby unemployed persons could be disqualified from benefit for refusing "suitable employment" (a concept to which reference is made in Article 20 of the Convention), by the apparently more restrictive concept of refusing employment without "good cause". It therefore requested the Government to provide information on the application in practice of the above provisions, and particularly of section 28 of the Act of 1992, which provides for disqualification from receiving unemployment benefit for a period not exceeding 26 weeks, particularly in the following cases: (i) if the unemployed person, "without good cause", has refused or failed to apply for any employment which has been properly notified to him as vacant; and (ii) if he has "without good cause" neglected to avail himself of a reasonable opportunity of employment. In its reply, the Government refers to the above Regulation 12E containing guidance on the concept of good cause for refusing employment. It also states that it is the responsibility of the adjudication officers, who are independent of the officers and Ministers of the Department of Social Security and the Employment Services Agency, to determine the cases in which there is a "good cause" for refusing a job which does not result in the suspension of the unemployment benefit. It adds, in its report on the application of the European Code of Social Security, that representative examples of actual cases involving the operation of Regulation 12E concerning "good cause" for the refusal of employment are unobtainable.

The Committee notes this information. It has also examined the guidance containing the various criteria on the basis of which the competent authorities decide whether or not "good cause" exists. The Committee notes in particular that, under the guidance contained in AOG Vol. 10, which deals with the refusal of employment without good cause, the term "employment" may apply to any gainful employment, including self-employment, although in practice most cases concern employed earner's employment. Furthermore, when deciding upon the legitimacy of the reason, the adjudication officer has to disregard, with the exception, in particular, of the special rules relating to the "permitted period", any matter relating to the level of remuneration of the employment in question, including the fact that the wage offered is lower than that received by most other employees in that occupation.

With particular reference to the "permitted period", the Committee referred in previous comments to section 29 of the above Act of 1992, which authorizes persons who have just become unemployed, for a limited time (without losing their benefit) to limit their search or refuse to accept employment which does not correspond to their usual occupation at a level of remuneration not lower than they are accustomed to receive. The Committee noted that by virtue of Regulation 12F of 1989, the "permitted period" covers a period of from one to 13 weeks depending on the experience and skills of the person and the employment opportunities available. The Committee requested the Government, taking into account Articles 20 and 24 of the Convention, to indicate whether there had been cases in which, in practice, the authorities had limited the application of section 29 of the Act of 1992 to a "permitted period" of less than 13 weeks. In its reply, the Government states that records are not kept on the numbers of claimants who have a "permitted period" of less than 13 weeks, but that it is unlikely to be many since in the majority of cases the full 13 weeks is allowed. The Committee notes this statement and hopes that the Government will be able to take the necessary measures to ensure that, in all the cases covered by the above provisions of the Convention, the duration of unemployment benefit is at least 13 weeks within a period of 12 months.

Finally, in view of the very broad powers of adjudication officers to decide upon the suspension of unemployment benefit, the Committee requests the Government to provide detailed information on the manner in which these officials are trained and monitored.

(d) The Committee notes the information supplied by the Government in relation to the application of section 27(1)(b) of the Social Security Contributions and Benefits Act of 1992 (which contain the same provisions as section 44(1)(b) of the Social Security Act of 1986).

2. Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). The Committee notes the statistics concerning the calculation of various benefits supplied by the Government in its report. It also notes the Government's reply to its previous comments concerning the manner in which the wage is calculated of an ordinary adult male labourer, selected in accordance with Article 66 of the Convention, for the purposes of establishing the rate of the benefit. The Committee requests the Government to continue to indicate in future reports the reference year for both the selected wage rate and the level of benefit provided by the national social security scheme for each of the contingencies corresponding to the Parts of the Convention which have been accepted. It also hopes that the Government will make every effort in future reports to supply statistics on the wage of an ordinary adult male labourer selected in accordance with paragraph 4 or 5 of Article 66 on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987.

[The Government is asked to report in detail by 1 September 1995 at the latest.]

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The Committee notes the detailed information supplied by the Government in its report and the attached texts of laws and regulations. The Committee also notes, from the information supplied to the Council of Europe in the Government's twenty-sixth annual report on the application of the European Code of Social Security, the various changes which are planned or have been decided upon by the Government respecting sickness insurance, unemployment insurance and old-age insurance. It hopes that the above changes will not affect the proper application of the Parts of the Convention that have been accepted. It requests the Government to provide detailed information in its next report on the implementation of these reforms, as well as information on the new incapacity benefit which will replace sickness benefit and on the jobseeker's allowance.

The Committee also notes the comments made by the Trades Union Congress (TUC), which were transmitted by the Government with its communication dated 1 February 1995 and which concern the application of Article 69(f) and (i) of the Convention, in relation to unemployment benefit (Part IV). Under these provisions, benefit may only be suspended where the contingency has been caused by the wilful misconduct of the person concerned or when the person has left the employment voluntarily without just cause. As these and certain other matters were raised in its previous comments, the Committee has examined them in a new direct request. The Committee therefore requests the Government to refer to the above request.

[The Government is asked to report in detail by 1 September 1995 at the latest.]

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The Committee notes the Government's report containing texts of the new legislation as well as detailed information in reply to its previous comments. Taking into account that the report was received just before the opening of its session, the Committee decided to defer its examination until its next session 1996.

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With reference to its previous comments, the Committee notes the detailed information supplied by the Government in its report. It wishes to draw its attention to the following points.

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (also in relation to Article 69). (a) Under the terms of section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992, a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his misconduct. The Committee recalls the information supplied by the Government in its report for the period 1958-60 which maintains that the term "misconduct" employed by the legislation was interpreted by case law and in practice as equivalent to "wilful misconduct", in accordance with Article 69(f) of the Convention. The Committee would be grateful if the Government would confirm whether this practice is still in force.

(b) The Government states that the requirement to actively seek work in order to be entitled to unemployment benefit was introduced in 1989, in the light of evidence that some unemployment claimants were making little effort to find a job. The introduction of this requirement was aimed to encourage them to go about their job search in a more positive and organized way. Any person claiming unemployment benefit must show that he is both available for work and actively seeking work, which means that he is willing and able to take up a job opportunity immediately as one arises. The Government adds that the reasonable steps that an unemployed person has to take each week to find work will vary from individual to individual. It may mean contacting local employers, answering advertisements in newspapers or making inquiries about possible job offers. It is however recognized that the job opportunities available to some unemployed people may be limited, perhaps due to their age or health problems. Therefore, all an individual's circumstances are taken into account in determining whether the unemployed person has taken reasonable steps to find work. Although some simple record of the job applications made or other steps taken is helpful, an unemployed person is not penalized just because he or she cannot provide proof of them.

The Committee notes this information. It also notes section 57 of the Social Security Contributions and Benefits Act of 1992, and the Social Security (Unemployment, Sickness and Invalidity Benefit) Amendment No. 2, Regulations No. 1324 of 1989, of which Regulations 12B to D specify certain aspects of the requirement to be actively seeking employment. In particular, Regulation 12B lays down that the steps which a person is required to take if he is to be regarded as actively seeking employment shall be those which are reasonable in his case as offer him his best prospects of receiving offers of employment. In this respect, the Committee recalls that Article 20 of the Convention provides that the contingency covered shall include suspension of earnings "due to inability to obtain suitable employment in the case of a person protected who is capable of, and available for, work". According to this provision, the applicant must be both capable of and available for work. It also implies the will to seek work and to accept a suitable job. It should be emphasized in this respect that, although Article 20 of the Convention does not refer explicitly to the requirement to be effectively seeking a job, a positive attitude by the unemployed person is nevertheless expected since, under Article 69(h) of the Convention, the unemployment benefit may be suspended where the person concerned has failed to make use of the employment services placed at his disposal. The Committee therefore hopes that, when evaluating the steps taken by unemployed persons to actively seek employment as a requirement for obtaining unemployment benefit, the authorities responsible for the administration of the unemployment insurance scheme will continue to take into account the obligations deriving from Part IV of the Convention. In this context, the Committee notes that during the period 1989-91, there were 2,135 cases of the suspension of unemployment benefit on these grounds. It requests the Government to supply information on the reasons which gave rise to such suspensions, particularly when these occurred during the minimum duration for the provision of benefits set out in Article 24 of the Convention (13 weeks within a period of 12 months, or 13 weeks in each case of suspension of earnings). It also requests the Government to indicate whether new regulations have been adopted under section 57(3) of the Social Security Contributions and Benefits Act of 1992 and whether guidelines have been issued for the authorities responsible for the administration of the social insurance scheme specifying the way in which the requirement that unemployed persons must be actively seeking employment is to be implemented in practice. If so, it would be grateful to receive the text of such regulations and guidelines.

(c) The Committee notes from the information supplied by the Government in its report on the Convention, and in its 24th report on the application of the European Code of Social Security, that section 12 of the Social Security Act of 1989 amended the rule by which a person could be disqualified from receiving unemployment benefit for having refused suitable employment. Section 28 of the Social Security Contributions and Benefits Act of 1992 provides for disqualification from receiving unemployment benefit for a period not exceeding 26 weeks, particularly in the following cases: under subsection (b) if the unemployed person, "without good cause", has refused or failed to apply for any employment which has been properly notified to him as vacant or refused to accept the situation when offered to him; under subsection (c) if he has "without good cause" neglected to avail himself of a reasonable opportunity of employment. In this connection, Regulation 12E introduced by Regulations No. 1324 of 1989 sets forth certain indications with respect to the criteria to be taken into consideration in determining "good cause".

Furthermore, as stated by the Government in its report, section 29 of the above Act of 1992 provides that persons who have just become unemployed are authorized, for a limited time (termed the "permitted period") to limit their search for employment to their usual occupation at a level of remuneration not lower than they are accustomed to receive. In this respect, the Committee notes that, in accordance with the implementing regulations (Regulation 12F), the "permitted period" covers a period of from one to 13 weeks depending on the experience and skills of the person and the employment opportunities available. In view of the provisions of Articles 20 and 24 of the Convention, the Committee requests the Government to indicate whether there have been cases in which, in practice, the authorities responsible for the administration of unemployment insurance have limited the application of section 29 of the Social Security Contributions and Benefits Act of 1992 to a "permitted period" of less than 13 weeks.

The Committee also requests the Government to supply examples of the application in practice of the provisions of section 28 of the above Act of 1992 and of Regulation 12E, introduced by Regulations No. 1324 of 1989, which replaced the condition concerning the impossibility of obtaining a suitable job by the more general and apparently more restrictive concept of refusing employment (or any similar act) without "good cause". Finally, the Committee requests the Government to supply the text of any new regulations adopted under section 28(5) of the above Act of 1992, and the text of any guidelines which may be issued for the use of the competent authorities to specify the manner in which these provisions are to be implemented in practice.

(d) In its previous comments, the Committee requested the Government to supply detailed information on the implementation in practice of section 44(1)(b) of the Social Security Act of 1986, which amends section 19 of the Social Security Act of 1975, and which provides that an employed earner who has withdrawn his labour in furtherance of a trade dispute but does not fall within section 44(1)(a) is disqualified from receiving unemployment benefit for any day in which his labour remains withdrawn. (Under section 44(1)(a) of the Social Security Act of 1986, an employed earner who has lost employment as an employed earner by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for any day during the stoppage unless he proves that he is not directly interested in the dispute (subject to the provisions of subsection 2).) In its report, the Government states that it does not have information on specific cases where section 44(1)(b) of the Social Security Act of 1986 was applied. However, it confirms that the practical effect of the relevant provisions of the legislation is that a person who has lost his employment because of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for the duration of the strike, unless he can prove that he is not participating in or directly interested in the trade dispute which caused the stoppage; or that he has become a bona fide employee elsewhere; or that his employment has terminated by reason of redundancy.

The Committee notes this information. It would be grateful to be duly informed of the manner in which section 44(1)(b) of the Social Security Act of 1986 has been applied in practice should a case arise.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). The Committee notes the statistics supplied by the Government in its report concerning the calculation of periodical benefits. It notes in particular that the wage of the ordinary adult male labourer for the purposes of Article 66 of the Convention is based on the weekly wage rate for an engineering labourer for a 39-hour week, as negotiated at the national level in 1987 and reviewed to reflect movements in mechanical engineering earnings since November 1987. According to these statistics, the wage of an ordinary adult male labourer is L117.70 per week. Although the Government does not specify the year to which the above wage corresponds, the Committee understands that it applies to 1982 since, in the information supplied by the Government under Part V (Old-age benefits) of the Convention, Article 28, it compares the weekly contributory old-age benefit paid as of April 1992 (L86.70) with the above wage of L117.70 per week.

The Committee however notes that, according to the statistics published in 1992 by the United Kingdom Department of Employment (New Earnings Survey 1992, Part C, Analyses by Industry, table C 78.3), the weekly earnings (excluding overtime effects) in April 1992 for a manual worker in the mechanical engineering industry belonging to the lowest decile was L162.04, which represents a difference of L44.34 per week in comparison with the statistics supplied by the Government in its report. The Committee therefore hopes that the Government will be able to re-examine the manner in which the wage of an ordinary adult male labourer is calculated for the purpose of calculating periodical benefits and that it will be able to supply detailed information in this respect. It also hopes that the Government will consider the possibility of referring in future to the statistics published by the Department of Employment in its earnings surveys.

Since the legislation cited by the Government in its report was received too late to be examined at the present session, the Committee has had to postpone its examination of it.

[The Government is asked to report in detail for the period ending 30 June 1994.]

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Part IV (Unemployment benefit)

1. Article 24 in conjunction with Article 69(i) of the Convention. Section 44, subsection 1(b), of the Social Security Act of 1986 - amending section 19 of the Social Security Act of 1975 - provides that an employed earner who has withdrawn his labour in furtherance of a trade dispute but does not fall within section 44, subsection 1(a), is disqualified from receiving unemployment benefit for any day on which his labour remains withdrawn (Endnote 1). Since, under Article 69(i) of the Convention, unemployment benefits may be suspended where the person concerned has lost his employment as a direct result of a stoppage of work due to a trade dispute, inter alia, the Committee would be grateful if the Government would provide detailed information on the practical implementation of subsection 1(b) of section 44 of the Social Security Act of 1986, providing, in particular, examples of cases where this provision has been applied.

2. Furthermore, the Committee takes note of a certain number of proposals to modify unemployment benefits, communicated by the Government in its twenty-first report on the application of the European Code of Social Security. Since some of these modifications might have an impact on the conditions for entitlement to, or maintenance of, unemployment benefits, the Committee hopes that the Government will endeavour to ensure that the new provisions adopted in this area do not affect the application of Part IV (Unemployment benefit) of the Convention. It would be grateful if, in its next report, the Government would provide detailed information on the implementation of these modifications, along with a copy of the newly adopted provisions. ENDNOTES Endnote 1

Under section 44, subsection 1(a), of the Social Security Act of 1986, an employed earner who has lost employment as an employed earner by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for any day during the stoppage unless he proves that he is not directly interested in the dispute (subject to the provisions of subsection 2).