Notes of Cases
| Published date | 01 January 1989 |
| Date | 01 January 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02597.x |
NOTES
OF
CASES
PART-TIME
WORKERS
AND
UNEMPLOYMENT
BENEFIT
IN
welfare rights circles the “full extent normal rule” (hereafter
referred to as the FEN rule) is known as the “Slough
of
Despond,”
and with good reason.’ The recent House
of
Lords decision in
Chief Adjudication OfJicer and Brun8
has done little to undermine
this reputation.
To
appreciate fully what the House
of
Lords
decision does, or perhaps more accurately what it does not do, it is
necessary to explain what the rule is, the nature
of
the various
“tests” that have been adopted to make sense of it and also to
review the previous case law, which, it is submitted, raise more
questions than have been answered or even addressed by the
House
of
Lords.3
The “Fen” Rule
Regulations4 made under the Social Security Act 1975 make
provision for days which are or are not to be treated as “days
of
unemployment.” Regulation 7(l)e5 provides that:
“subject to paragra h
(2
a day shall not be treated as a day
a person who does not ordinarily work on every day in a week
.
.
.
but who is, in the week in which the said day occurs,
employed to the full extent normal in his case, and in the
a plication
of
this sub-paragraph to any person no account
week on which he ordinariy works
or
the full extent
of
employment in a week which is normal in his case,
of
any
period
of
short-time working due to adverse industrial
conditions6;”
The FEN rule is used therefore to disallow a claimant’s
unemployment benefit
(UB)
on the ground that the claimant has
of
unemployment i
Pk
on t at day a person does no work and is
?
s
R
all be taken, in determinin either the number
of
days in a
*
The complexity of the rule, the bad drafting of the regulation, the difficulty in
resolving inconsistencies in Commissioned Decisions and the hazards in applying the
rule have all contributed to this.
*
[1988]
A.C.
711, [I9883 2
W.L.R.
511.
’
See generally, Trevor Buck “Unemployment Benefit:
The
‘Full
Extent Normal’
Rule”
[I9873
J.S.W.L.
23.
Hereafter referred to as Buck
(1987).
‘
Social Security (Unemployment, Sickness, and Invalidity Benefit) Regulations
1983
(S.1.
1983
No.
1598).
Ibid.
Paragraph
(2)
states that, “Paragraph (l)(e) shall not apply
to
a
person
unless (a)
there is a recognised or customary working week in connection with his employment; or
(b) he regularly works for the same number of days in a week for the same employer
or
group
of
employers.” This provision was introduced by S.I.
1966
No.
1049.
It should be noted that Commissioners Goodman and Monroe had suggested that
“urgent consideration should be given to the extension of the exception in regulation
7(2)
of the
1983
regulations and the corresponding regulation relating 16 the normal idle day
rule (re ulation
19(6))
so
as to make express provision for excluding such persons [CP
workersf from the operation of the rule,”
CU/274/1984
at paragraph
15.
But see effect of
regulation cited
infru
at n.36.
93
94
THE
MODERN
LAW
REVIEW
[Vol.
52
been working
for
a part
of
the week which is or has become that
person’s normal working week.
To
make an already badly drafted
regulation more workable the Commissioners have over the years
adopted several “tests”:
1.
The “One Year Before Test”
A claimant who has in fact worked only on some days
of
the week
for a period of a year or more
is
a “person who does not ordinarily
work on every day in a week,” unless there are some exceptional
industrial circumstances relevant to his case.”’
2.
The
50
per cent. Test
This test disentitles claimants who have not worked on the days in
question for more than
50
per cent.
of
the year (ending with the
day
of
claim in question). If a claimant has worked for
50
per cent.
or
more
of
these days in the year it should usually be held that
such a claimant is not (yet) caught by the regulation.’
3.
The Stop-Gap Test
Authority
for
this derives from a case in
1949
which states that,
“.
.
.
if a claimant took up, when unemployed, employment which
did not involve working on every day
of
the week as a stop-gap,
while looking for full-time employment, he could not properly be
held to be a ‘person who does not ordinarily work on every day in
a ~eek.”’~
Previous Authorities
There have been two recent reported Commissioners’ decisions
concerning the “full extent normal” rule and two Court
of
Appeal
decisions.
In
R(U)
3/84
(T)’O
the claimant was made redundant after
25
years work as a machine operator. He was unemployed for over
two years and was then employed (in April
1983)
part-time by the
“Community Task Force,” (a scheme operated by the Manpower
Services Commission (MSC)) as a painter’s labourer, at which time
he was
53
years old.
He
was informed that this part-time work
might develop into a full-time job, (which it did in August
1983).
See
CU/S18/1949,
quoted in
Brunf
(CA)
at p.476.
See Decision
R(U)
14/59,
quoted in
Brunt
(CA).
[1987]
J.S.W.L.
197-199 and Buck (1987) at pp.26-29
for
accounts
of
R(U)
3/86
(T).
In
R(U)
3/86
(T)
the claimant
was
informed at the time
of
commencing his
M.S.C.
job
as a
painter’s labourer that
it
might develop
into
a full-time
job.
It should
be
noted that
it
was
this point that informed the reasoning
of
both the majority decision of Commissioners
Goodman and
Rice
and the opinion
of
Chief Commissioner Brodley; see paragraphs
8-11
and 12-29 respectively.
:oCU518/49
(KL)
at paragraph 16.
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