Demande directe (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

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.]