Government's unpaid work schemes do not breach human rights, court rules

However, in a mixed judgement http://www.bailii.org/ew/cases/EWHC/Admin/2012/2292.html, Mr Justice Foskett said that the information provided to participants in the scheme by the Government was insufficient. The Department for Work and Pensions (DWP) failed to provide one claimant, Jamie Wilson, with sufficient information about the consequences of not participating in the scheme; and not informed a second claimant, Cait Reilly, in writing that her attendance at an 'open day' was voluntary.

The ruling considered the legality of two such programmes, established last year under the ambit of the Jobseeker's Regulations - the 'sector based work academy' (SBWA) scheme and the 'Community Action Programme' (CAP), designed to target the long-term unemployed. Wilson refused to participate in the CAP when he was told that he had to work for six months unpaid for up to 30 hours per week while Reilly ultimately participated in the SBWA against her wishes.

Public Interest Lawyers, the law firm that represented Wilson and Reilly, said that the decision could affect over 22,000 people who it claimed had been "stripped of their benefits" for failing to participate in the schemes. 

"[The] decision should mean that many of those subjected to benefit sanctions will be entitled to reimbursement by the Department of Work and Pensions," said Tessa Gregory with the firm. "It is truly extraordinary that the Government has found itself in this position by failing to provide basic information to those affected."

Mr Justice Foskett said that "clear guidance" about the consequences of failing to participate in the CAP needed to be provided to enable those affected to make an "informed choice" about whether or not to take part. A standard letter sent to Wilson at the beginning of the process indicated that he could lose benefits for "up to 26 weeks" if he did not participate, despite the fact that under the Regulations he only risked a two-week penalty. In addition, the judge said, the letter did not make it clear that these penalties would be applied in every case.

"I do not think that a 'catch all' suggestion of 'up to 26 weeks' meets the requirements of people in that category," he said, adding that a 'fair number' of those enrolled in the programmes were likely to be 'relatively unsophisticated'. "Indeed I consider that anyone, whatever their position or background, is entitled to a straightforward letter dealing with his or her personal position."

Jobseeker's Allowance is a benefit payable to individuals not in employment providing that certain conditions are met. These include that the individual must be available for employment, has entered into a jobseeker's agreement which remains in force and is actively seeking employment. Since 2009, the Government has also had the power to create schemes which "require participants to undertake work, or work-related activity ... with a view to improving their prospects of obtaining employment" in exchange for the provision of benefits".

Mr Justice Foskett said that there was little guidance from European lawmakers on whether the schemes were prohibited under the European Convention of Human Rights; however, he added that the purpose of the prohibition on "forced or compulsory labour" contained in that document was "originally to prevent the exploitation of labour in colonies". Although the document was a "living instrument, capable of development to meet modern conditions", he said that the benefits of the schemes made it extremely difficult to categorise them as such – even where the participants were not given a choice to take part or not.

"[V]iews may reasonably differ about the merits of a scheme that requires individuals to 'work for their benefits' as a means of assisting them back into the workplace," he said. "However, characterising such a scheme as involving or being analogous to 'slavery' or 'forced labour' seems to me to be a long way from contemporary thinking ."

Employment law expert Kirsty Ayre of Pinsent Masons, the law firm behind Out-Law.com, said that the court's verdict was unsurprising given the nature of the argument.

"It is not entirely surprising that the court in this case rejected an argument that two government schemes aimed at assisting job seekers back to work did not amount to 'slave labour'," she said. "The words of the judge - that the schemes were 'a very long way removed from the kind of colonial exploitation of labour' that led to the European Convention of Human Rights - will, no doubt, have come as a relief to those in government circles."

The DWP welcomed the ruling, and said that it has "revised" its standard letters.
"We do not believe there is anything wrong with the original letters and we will appeal this aspect of the judgment," it added.