R (on the application of Reilly and another) v Secretary of State for Work and Pensions  EWHC 2292 (Admin) HC
human rights | forced or compulsory labour | jobseeker's allowance
The High Court has held that two government schemes in which individuals who are on jobseeker's allowance are given unpaid placements are lawful and not a breach of participants' human rights.
Implications for employers
- While this case was against the Government, this decision should reassure employers that take part in back-to-work schemes that the law is not being broken.
- This decision does not mean that employers can avoid paying the national minimum wage to a worker who is doing work to get his or her "foot in the door" of a sector or organisation (for example, an intern).
Ms Reilly, a graduate looking for work and claiming jobseeker's allowance, was given the "opportunity" to attend an "open day" at which retail jobs would be available. Ms Reilly was told that she was suitable for "training", which would last for up to six weeks and be unpaid. Ms Reilly questioned the value of her participation in the scheme because she already had experience in retail and wanted to do other volunteer work in museums, which was her long-term ambition. According to Ms Reilly, she was told that her participation was "mandatory" and that, if she did not agree to take part, she risked "sanctions" (losing her jobseeker's allowance or having it reduced). After a week of training she was placed for work at a Poundland store, but was not paid.
Mr Wilson, an HGV driver looking for work, was told that, to continue to receive jobseeker's allowance, he would have to take part in a new programme. He was told that he would be required to work for 30 hours per week for 26 weeks or until he found employment of 16 hours per week or more. Mr Wilson refused to take part in the scheme. His attitude was that he was not prepared to work for free, particularly for such a long period of time.
Both Ms Reilly and Mr Wilson challenged the validity of the Government requiring them to work for no pay as a condition for continuing to receive jobseeker's allowance. The two schemes that they challenged were the sector-based work academy scheme (known as the "SBWA scheme") and the Community Action Programme (known as the "CAP"). The arguments put forward by Ms Reilly and Mr Wilson included that the Government had gone beyond its powers as set out in the Jobseekers Act 1995 and that requiring them to work for no pay to receive jobseeker's allowance was a breach of art.4 of the European Convention on Human Rights (which covers the prohibition of slavery and forced labour).
The High Court accepted that there were flaws in Ms Reilly's and Mr Wilson's treatment:
- Ms Reilly had been misinformed about a crucial feature of the scheme. She was told before she took part that it was mandatory and, had she been told from the start that it was in fact optional, she would not have agreed to participate. However, once she agreed, she became "locked in" to participating.
- While Mr Wilson did not claim that he was substantially misled at the start about the consequences of not participating in the CAP, he successfully argued that the Government did not give him the correct notice in writing, which it should have done for him to be required to participate in the scheme.
However, the High Court concluded that these flaws in two individual cases were not, in themselves, sufficient to make the schemes unlawful.
The High Court went on to reject Ms Reilly's and Mr Wilson's claims that the unpaid work schemes breached their human rights under art.4 of the European Convention on Human Rights. The High Court said that characterising the SBWA scheme and the CAP as involving or being analogous to "slavery" or "forced labour" seemed to it to be a "long way from contemporary thinking". The High Court referred to research suggesting that schemes like these "can and do have a beneficial effect in relation to the obtaining of work by the long-term unemployed".
- Vetta v London Dreams Motion Pictures Ltd ET/2703377/09 In this employment tribunal case, a company in a highly competitive creative industry that took on a worker seeking to get her foot in the door and paid her "expenses only" was found to have breached national minimum wage and working time legislation.
- Work experience and internship survey 2011: a question of pay Four employers in 10 offering work experience for students and graduates do not normally pay them a wage, according to XpertHR's survey.
- How to manage internships The XpertHR "how to" section provides guidance for employers on the practicalities of running internships, including whether or not interns have the right to be paid the national minimum wage.
Case transcript of R (on the application of Reilly and another) v Secretary of State for Work and Pensions (on the UK Judiciary website)