Poundland was one of the employers
The High Court has ruled emergency laws underpinning a government back-to-work scheme are “incompatible” with the European Convention on Human Rights.
The government says it should not have to repay claimants docked benefits for not doing all they could to find work.
But a judge said the retrospective application of legislation passed in 2013 “interfered with the right to a fair trial” of those affected.
Ministers said they were “disappointed” and would appeal.
The case originates in a legal challenge brought by Cait Reilly in 2012. She maintained that her participation in an unpaid work placement in a Poundland store in 2011 breached her human rights.
The 24-year-old graduate challenged the legality of the scheme, part of the government’s “mandatory work activity” programme, where claimants risk losing their Jobseeker’s Allowance if they do not take part.
She said she had not been informed prior to the placement that she would, as a result, have to give up her voluntary work in a museum – where she hoped to build a career.
‘Minority of cases’
The government was forced to pass emergency legislation amending the regulations last year after the Court of Appeal ruled that Ms Reilly had not been properly notified about the scheme and its undertakings.
The legislation, which came into force in March 2013, strengthened the rules to make it clear that claimants must do all they could to find work in order to claim benefits.
It also sought to ensure the government did not have to repay claimants who had been penalised for not complying with the conditions of their benefit claims by retrospectively “validating” sanctions.
But claimants argued that this was unfair and insisted they were entitled to compensation.
Mrs Justice Lang, sitting at the High Court in London, ruled on Friday that the retrospective nature of the legislation interfered with the “right to a fair trial” under Article Six of the Convention on Human Rights.
She said the claimants could apply for a judicial review of the relevant legislation.
The Department for Work and Pensions said it was “disappointed” by the ruling – which it said applied to a minority of claimants – and would appeal.
“We disagree with the judgement on the legislation and are disappointed,” a spokeswoman said.
“It was discussed, voted on and passed by Parliament. While this applies to only a minority of past cases and does not affect the day-to-day business of our Jobcentres, we think this is an important point and will appeal.”
She said the legislation remained “in force” and the government would not be compensating anyone pending the outcome of its appeal.
‘But Paul Heron, a solicitor for Public Interest Lawyers, said it was a “massively significant” ruling and the DWP’s decision to appeal against it would be a further blow to the “upwards of 3,000 cases sitting in the tribunal system waiting for this judgement”.
About £130m was owed to people who had fallen foul of the retrospective legislation, he said, ranging from four weeks’ benefit, about £250, to several thousand pounds.
He told BBC News it was “about time the DWP just held their hands up, admit they made an error, and pay people the money they were entitled to at the time. That is what a responsible government would do”.
The back-to-work schemes have been condemned by critics as “slave labour” because they involve work without pay. But they are seen by supporters as a good way of getting the unemployed back into the world of work.
The Supreme Court upheld the Court of Appeal’s ruling on the regulations last year, although the judges also rejected claims that the schemes were “exploitative” and amounted to “forced labour”.
Ministers said that the most recent legal judgement had upheld this view.
“We’re pleased the court recognised that if claimants do not play by the rules and meet their conditions to do all they can to look for work and get a job, we can stop their benefits,” the spokeswoman added.
Poundland, one of several employers which took part in the scheme, withdrew from it in 2012.
What will happen with Community Work Placements, such as clearing up litter and graffiti in their local areas, which are to be introduced for the long-term unemployed?
This is the case by the Public Interest Lawyers:
- Our clients do not object to work or to work experience. Cait Reilly was doing voluntary work experience in a museum when she was sent to Poundland. Our clients, like the vast majority of jobseekers, are desperate to find paid work of any description, including stacking shelves. The term “job snobs” is therefore a misleading and offensive buzz word being used by the Government to discredit Britain’s 2.6 million unemployed. What our clients say they need is support from the Government to make the most of their skills and plug their skills gaps, in order to ensure that they not only enter the job market, but stay there.
- The Government is not “paying them… through benefits” to work, as the Deputy Prime Minister has claimed today. Jobseekers allowance ranges from £53.45 to £67.50 per week. It is paid for one specific (and obvious) purpose – to support people whilst they seek employment. It is not remuneration for work, and even if it were it would mean that people on Back to Work schemes would be getting paid as little as £1.78 per hour, often whilst working for some of our biggest retailers. Many of those retailers are now realising that such a scenario is unacceptable and have either pulled out of the schemes or demanded that the Government thinks again.
- People are not being given a choice. Ministers claim that work under these schemes is not forced but voluntary. This is not correct. The Community Action Programme, Work Programme and Mandatory Work Activity Scheme (the clue is in the name) are mandatory, and jobseekers will lose their jobseeker’s allowance if they do not participate. The Government says the sector-based work academy and work experience schemes are voluntarily, but Cait Reilly was told in no uncertain terms that her participation was “mandatory”.
- The schemes do not work. Ministers claim the schemes help people into employment. Yet, the international research the Government commissioned before introducing them gave it two very clear answers:
“There is little evidence that workfare increases the likelihood of finding work. It can even reduce employment chances by limiting the time available for job search and by failing to provide the skills and experience valued by employers”; and
“Workfare is least effective in getting people into jobs in weak labour markets where unemployment is high.”
- The schemes do not target benefits scroungers or “the something for nothing generation”: the Government’s internal guidance makes clear that such people who are taking advantage of the system are noteligible for the schemes. They must receive the appropriate sanction of removal of their jobseeker’s allowance as they are not “jobseeking”.
- These legal challenges are not simply about “human rights”. What our clients object to is 1) the forced or compulsory nature of the work required, and 2) that Parliament has been by-passed by the Government in creating these schemes. They argue that this breaches basic democratic and legal requirements.
- The Government schemes do not amount to slave labour, as some campaigners have suggested. The ILO’s Forced Labour Convention of 1930 defines slavery as connoting “ownership” over an individual. What our clients are arguing is that the Government schemes are “forced or compulsory” labour. This too is prohibited under UK civil and criminal law.
- These schemes are not all aimed at the long-term unemployed. For example, the sector-based work academy can apply to any jobseeker, even if he or she has only been unemployed for one day
- Press attention has focused on the sector-based work academy, but that is only one of a plethora of complex schemes, many of which are much worse. The sector-based work academy involves 6-8 weeks of unpaid work. Other schemes involve six months, and there appears to be nothing to stop those six-month periods from being renewed. One of our clients was told that his Community Action Programme placement would last six months “to begin with”.
- The Government’s sums do not add up. The Employment Minister has stated that “half” or “something like half” of those on work experience have received permanent jobs. He has not advanced any evidence to support this, and Tesco has offered only 300 jobs having taken on 1400 unpaid workers.
We would say that many of these legal, moral and political criticisms apply to Community Work Placements, and the whole ‘Help to Work’ fiasco.