R (Ann Summers Ltd) v Jobcentre Plus
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newman,MR JUSTICE NEWMAN |
| Judgment Date | 18 June 2003 |
| Neutral Citation | [2003] EWHC 1416 (Admin) |
| Docket Number | Case No: CO/5640/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2003 |
[2003] EWHC 1416 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: CO/5640/2002
Kate Gallafent (instructed by Ann Summers Limited) for the Applicant
James Eadie (instructed by Dept of Work & Pensions) for the Respondent
1. The claimant company, Ann Summers Limited (Ann Summers), was established in 1970. Its head office is in Surrey and it has 72 retail outlets situated throughout the United Kingdom. In addition it runs a party plan network as well as mail order and web site catalogues. The range of articles sold through its retail shops, by mail order and over the internet appear from various catalogues which are in evidence before the court. For example the Ann Summers’ catalogue, autumn/winter collection 2002 is headed “Passion and Fashion”. The frontispiece carries the following warning:
“This catalogue is for adults only. It features products of an explicit sexual nature. If you feel these may offend you please dispose of it”.
The Ann Summers’ Uncut mail order catalogue carries the same warning. The catalogue contains greater nudity than the Ann Summers’ Collection catalogue, and, as the introduction states, it is designed to advertise “The horniest sex products”. Whereas the collection catalogue contains what could be described as sensual lingerie, the Uncut catalogue contains articles and clothes which are expressly designed to be used in connection with sexual activity. The internet catalogue is a combination of both and calls for no particular comment.
2. In addition to the retail shop outlets it runs one shop in Bristol, which has been required by the local authority to be licensed to trade as a “sex shop”, the licensing being under The Local Government ( Miscellaneous Provisions) Act 198Ann Summers has not been required to seek a licence under the Act for any of its 72 outlets in other areas of the United Kingdom.
3. Jobcentre Plus is an executive agency of the Department for Work and Pensions. The agency was launched in April 2002 to bring together the work of the Employment Service and the Benefits Agency.
4. The legislative basis for the job – brokering role of the Department of State is contained in Section 2 of The Employment and Training Act 1973, in particular subsection (1):
“The Secretary of State shall make such arrangements as he considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities or assisting persons to obtain suitable employees (including partners and other business associates).”
The fulfilment of the obligations of the Secretary of State under Section 2 of the Act is advanced by the provisions of The Jobseekers’ Act 1995 and The Jobseekers’ Allowance Regulations 1996 (SI 1996 No. 207) (as amended). One of the principal objectives served by the Jobseekers’ Act and Regulations is to provide a benefit for people who are unemployed, or who work for less than 16 hours per week, and who are looking for full-time employment. To qualify for Jobseekers’ Allowance a person has to satisfy certain conditions, in particular, the labour market conditions which require a person to be available for work and willing and able to take up work. The allowance would not be payable if the jobseeker has, without good cause, after a situation in any employment has been notified to him by an employment officer as vacant, or about to become vacant, refused or failed to apply for it or accept it when offered. The relevance of these provisions to the issue the court has to resolve will appear later in the judgment.
The challenge
5. In 2001 Ann Summers entered a period of major expansion. In that year 13 new shops were opened and the aim in 2002 was to open a further 100. At that time there existed a ban which prevented Ann Summers advertising its vacancies in Jobcentre Plus recruitment centres or Jobcentres. As a result Jacqueline Gold, the Chief Executive Officer of Ann Summers since 1993, wrote to the Minister by letter dated 10 May 2002 drawing attention to the proposed expansion programme and foreshadowing a recruitment need for some 1,000 new members of staff to work in the stores. Ms Gold pointed out in the letter -
“Your colleagues have informed us that the reason Ann Summers can not recruit through the Jobcentres is because it is believed that Ann Summers is part of the sex industry. I would have more understanding of this policy if other government departments classified Ann Summers as a sex shop and we were asked to apply for a license to trade, but this is not that case so we are clearly not a sex shop.”
The writer went on to point out that attitudes had changed and that Ann Summers is an accepted retail store on the nation's high streets.
6. By letter dated 26 June 2002 the Chief Executive of the defendant replied as follows:
“As a result of your letter I have personally reviewed the position. Having done so, I have concluded that our approach of not handling vacancies associated with the sex or personal services industry remains appropriate. This policy is one which we have operated over many years and under successive governments. It does not reflect in any way on the Ann Summers business, nor does it seek to make a judgement on the business sector in which you operate.
“The key issue here is that, as a public employment service, Jobcentre Plus requires many of its clients to be willing to consider the vacancies we have on offer and to demonstrate that they are actively seeking employment. Failure to do so can lead to a loss or reduction in their benefit entitlement. Against that background we do not consider it right to handle vacancies which could potentially offend or cause embarrassment to a significant number of jobseekers and which could place them in the position of either being willing to consider such vacancies or putting at risk their continued entitlement to state benefits.
“In your letter you say that you are not a sex shop. To be clear, my only interest in that question is whether, on any reasonable common sense test, there are a number of jobseekers who might conclude that this is indeed the business with which you are associated and who might be offended or embarrassed if asked to consider a vacancy in your organisation. I have to say that, having taken the opportunity to view your web site, it is self-evident to me that this is the case. From the tone, language and graphics used, it is clear that you are making a range of adult sex products that could indeed cause embarrassment or offence to substantial numbers of jobseekers.
“I am sorry that I have been unable to respond more positively to your request but hope that you will be able to meet your recruitment needs through the many other recruitment channels available to you.”
7. The correspondence was then taken up by solicitors for Ann Summers and in a letter dated 6 August 2002 the solicitors requested –
“In order that we can properly advise Ann Summers, please could you:
1. Inform us whether the policy referred to is a written policy and, if so, provide a copy of it;
2. Explain, if this is not apparent from any policy document provided to us under 1 above, how you have defined “sex or personal services industry” in the context of the policy;
3. Indicate in respect of what other industries (if any) the same or a similar policy is operated and provide a copy of any such written policy; and
4. State whether Jobcentre Plus maintains a list of “prohibited” advertisers pursuant to the policy it is operating against Ann Summers and, if so, provide a list of those prohibited advertisers.
“As you will appreciate, Ann Summers is aggrieved by the application of your policy to it which not only prevents it from advertising staff vacancies in Jobcentres and taking advantage of the services you offer but deprives certain jobseekers of the opportunity to consider those vacancies.
“Ann Summers is currently resolved to challenge both the lawfulness of your policy itself and the application of it in the Administrative Court if necessary. However, my view and that of Ann Summers is that there is scope for resolution of this dispute without resorting to the courts. It appears to me that part of the problem arises from a misconception as to the nature of the vacancies that Ann Summers is seeking to fill in its high street retain outlets, Head Office and warehouse operations which have led, wrongly, to your classification of them as “vacancies associated with the sex or personal services industry”. It would, in our view, aid a better understanding if either the Minister, you or a member of your senior staff set aside time to meet with a senior executive of Ann Summers and take the opportunity to be shown their operations to see for themselves/yourself what is involved. I anticipate a suitable “tour” could be laid on to achieve that better understanding and to discuss the issues very quickly. I would anticipate the tour could be completed in less than half a day, and would then be the basis of an informed discussion.
“The proposal made in this letter is a genuine attempt to see if a resolution can be achieved outside the formality of court proceedings.”
The suggestion of a visit and meetings was taken up and as a result the matter was reviewed by the Chief Executive. Although there was a period of delay, in respect of which complaint was made, on 14 November 2002 the Chief Executive gave notice of the decision which is now under challenge. Having...
To continue reading
Request your trial