Crewe v Anderson
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONALDSON,LORD JUSTICE SLADE |
| Judgment Date | 05 May 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0505-1 |
| Date | 05 May 1982 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0165 |
[1982] EWCA Civ J0505-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice.
The Master of The Rolls
(Lord Denning)
Lord Justice Donaldson
and
Lord Justice Slade
82/0165
In the Matter of the Social Security Acts 1975 to 1980
and
and
MR. R. JACKSON (instructed by Messrs. Reynolds Porter Chamberlain) appeared on behalf of the Applicants (Appellants).
MR. SIMON BROWN (instructed by the Solicitor, Department of Health and Social Security) appeared on behalf of the Respondent.
Ernest Crewe was a school teacher. He was aged 61. He had taught in schools for 39 years. But then the education authority wanted the older teachers to retire voluntarily. This was because the number of children was decreasing and they did not want so many teachers. It was also because the education authority wanted to get young teachers into work instead of being on the dole. Also they did not want too many old teachers for young children. There was a financial advantage too. Young teachers would be paid less than the older ones. So the education authority, with the active support of the Department, introduced a scheme for early retirement for teachers over 50. They offered considerable inducements. Whereas previously a school teacher was not at liberty to retire early, now he was to be at liberty to retire early: and to get nearly as high a pension as if he had served his full time. He got so many "added years" added notionally to his credit although he had not served them. There were other inducements too. These proved sufficiently attractive to induce Ernest Crewe to apply for early retirement. He did so. His retirement took effect from the 1st September, 1979. Thereupon he applied for unemployment benefit. His case was taken up by his association (the Assistant Masters and Mistresses Association). The insurance officer said that he was disqualified from obtaining it for the first six weeks, but thereafter he would receive it. He did not agree with this six weeks' ban. He appealed to the local tribunal. They refused by a majority to allow him the six weeks' benefit. He applied to the social security commissioner (Mr. Roderick Bowen, Q.C.). He refused it too, but gave leave to appeal to this court. It is the first appeal under the Social Security Act 1980. It comes only as a point of law.
The law
The difference arises on a provision about unemployment benefit which goes back for seventy years. In 1911 there was introduced into England a scheme for unemployment benefit for those out of work. In the very first Act—the National Insurance Act 1911—there was a clause which disqualified a man to unemployment benefit. It was section 87 (2). The clause was repeated in the same words in section 8 (2) of the Unemployment Insurance Act 1920 and in the National Insurance Act 1946. It has been repeated in every Act since that time. It is now contained in section 20 (1) (a) of the Social Security Act 1975. It says that a man is disqualified for a period not exceeding six weeks if "he has lost his employment as an employed earner through his own misconduct or has voluntarily left such employment without just cause".
Mr. Crewe is, of course, not guilty of any misconduct: but he did voluntarily leave his employment. The question is whether he left it "without just cause". At first sight it would look as if Ernest Crewe had "just cause" for leaving his employment. His employers wanted him to go—not for his own sake—but for their own sake. That is shown by the regulations about premature retirement. They apply only when his employer is satisfied that his services have been terminated "in the interests of the efficient discharge of his employer's function". The education authority here were so satisfied because the educational system would be more efficient if he retired and was replaced by a younger man.
But this simple approach is contrary to a long line of decisions by the commissioners. These I would summarise:
(1) In 1930 (Case No. 11760/30) an employee of a local authority left his employment to obtain a pension which would bring him in an income of about £2 a week. The commissioner said:
"This does not afford 'just cause' for leaving any more than it would have done had the claimant left his employment because somebody had left him a legacy which brought him in a similar or larger income".
(2) In 1951 (Case No. R (U) 26/51) an employee voluntarily left his employment at 60 when he could have stayed on to 65. He got the pension applicable to his period of service. It was held that he had left "without just cause". The commissioner said:
"The question is not whether it was reasonable and proper for the claimant to retire on pension but whether, when he elects to do so and thereby 'abandons employment', it is reasonable that he should be allowed to derive benefit from the Unemployment Fund".
(3) In 1952 (Case No. R (U) 14/52) an employee aged 61 was employed at a place 70 miles from his home. He gave it up so as to be with his wife and to try to get work nearer home. It was held that he had "just cause" for leaving. The commissioner said:
"I do not think that he should incur disqualification for unemployment benefit because in the circumstances he made up his mind to bring his employment to an end and go home".
(4) In 1959 (Case No. R (U) 23/59) a police officer retired at 52 when he could have continued until 55. As he had done 30 years' service, he got the maximum pension. There was some suggestion that the Home Secretary thought that police officers should retire when they had qualified for maximum pension. The commissioner held that he left "without just cause". He felt that the case was indistinguishable from the 1951 case (No. 2 above). He explained that the previous decisions should be followed. He said:
"Other insured persons similarly situated have failed to establish just cause for leaving when they did and have been disqualified for receiving unemployment benefit…"
(5) In 1964 (Decision No. (R (U) 20/64) a police sergeant retired at 47 after doing 25 years' service and earned a pension. He could have stayed on for several more years. He had bought a house two miles away, but was then transferred to a station eleven miles away from his house. He retired in the hope of getting work near his home. The case was decided by a tribunal of commissioners presided over by the Chief Commissioner, Sir Robert Micklethwaite, Q.C. He gave a closely reasoned decision, holding that the police sergeant was disqualified from receiving unemployment benefit. He said:
"It is not sufficient for him to prove that he acted reasonably, in the sense of acting reasonably in his own interests. The interests of the National Insurance Fund and other contributors have to be taken into account as well…If he wishes to claim unemployment benefit, he must not leave his employment without due regard to the interests of the rest of the community…"
(6) In 1970 (Decision No. R (U) 4/70) a police inspector retired at 51 after he had completed 30 years' service. Although he could have stayed on longer, the terms of his service would become less favourable. The commissioner (Mr. Lazarus, Q.C.) held that he left "without just cause":
"The primary purpose of the unemployment insurance scheme is to insure against unemployment involuntarily incurred, and it is implicit in it that each insured person owes a duty to all the other contributors to the—unemployment insurance fund not to incur unemployment by his own conduct…I find it hard to conceive of a case in which the pursuit of a personal financial advantage could by itself be held to constitute a 'just cause'".
I have cited those decisions because they are of much persuasive force. As I said in Reg. v. National Insurance Commissioner, Ex parte Stratton (1979) 1 Queen's Bench at page 369B:
"If a decision of the commissioners has remained undisturbed for a long time, not amended by regulation, nor challenged by certiorari, and has been acted upon by all concerned, it should normally be regarded as binding. The High Court should not interfere with it save in exceptional circumstances…"
I think those decisions are best understood by remembering that most of them were given at a time when a man had no proprietary right in his job. There was no provision for redundancy payment and no compensation for unfair dismissal. Even though a man was an excellent workman, he could be dismissed at a week's notice and put on the street with no payment from anyone. Such a man ought to be entitled to unemployment benefit straightaway as soon as he lost his job—which was his source of income. But, if he voluntarily retired from his work—with no other job to go to—his loss of income was his own choice. He had no "just cause" for retiring. He would not be entitled to unemployment benefit. But, suppose his retirement was due to illness or old age, or having to look after a sick wife. He would have lost his income for a "just cause". He should be entitled to unemployment benefit. But, if he voluntarily retired because he had been left a legacy or was entitled to a retirement pension, then there was no "just cause" for giving him unemployment benefit straightaway. He should be disqualified for six weeks anyway.
That line of approach explains, I think, all the previous decisions. They warrant the following propositions:
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