Unpaid wages to unpaid benefits

When does a job count as ‘work’? This question is pressing across the EU (which at time of writing includes the UK and will do so whatever the result on Thursday 23rd for some time to come)[1]. While free movement across EU member states is the right of most EU citizens, the right of residence for longer than three months is for self-sufficient (i.e. wealthy) people and for workers and their family members. The EU citizen is paradigmatically a worker citizen. According to the EU a person must be in ‘genuine and effective’ work, but the question of what constitutes genuine and effective work is largely settled at a national level. In the UK from 1 March 2014 one of the tests for work being genuine and effective was that earnings exceed the national insurance threshold for 3 months, or £153 a week. Notably this was, at the time, considerably more than the wages of apprentices, raising the question of whether their work is considered ‘genuine and effective’. Given European Economic Area  (EEA) nationals’ concentration in low-waged jobs in sectors such as hotel and catering, cleaning, agriculture and social and childcare, where zero-hours contracts, agency and temporary working are rife, this kind of threshold is likely to prove challenging. It also means that unpaid wages become unpaid benefits. EEA migrants who lose their jobs can claim Job Seekers Allowance (JSA) as a worker only if they have been in ‘genuine and effective’ work for the three months before making their claim. If they have not been paid enough money to count as workers then they will not be eligible.

The welfare consequences of this definition are perverse even following the government’s logic.  An EEA national who passes the test to count as a worker for the purposes of claiming JSA can claim for a maximum of 6 months before being required to pass a Genuine Prospect of Work Test. To pass this, they must provide ‘compelling evidence’ that that they will receive an offer ‘imminently’ for work of a type that is considered ‘genuine and effective’. To be eligible for benefit an EEA national must have a genuine chance of finding genuine and effective work in the labour market sector that is relevant to their previous experiences. In contrast, as the guidance for JSA decision makers on sanctions makes clear, resident UK nationals must be prepared to do any work, irrespective of whether it is genuine and effective, or whether it is in a sector that is of interest to them. Indeed citizens are finding welfare rights they took for granted increasingly circumscribed. There has been an increase in the use of sanctions for failure to comply with work-related conditions. In written evidence submitted to the House of Commons Work and Pensions committee inquiry into benefit sanctions policy, David Webster found that the total number of sanctions issued to people claiming JSA and Employment Support Allowance (ESA) before reconsiderations/appeals in the year to June 2014 was an estimated 1,030,000. That is not a typo. In the summary of his evidence, Webster described the system as ‘a huge secret penal system, rivalling in its severity the mainstream judicial system but without the latter’s safeguards’. For someone who works on immigration this is eerily familiar territory.

Prime Minister Cameron has often referred to immigration and welfare benefits as ‘two sides of the same coin. It is difficult to see both sides of a coin at the same time, but as the EU referendum has demonstrated, we badly need to connect exclusions from formal citizenship (migration) with exclusions within formal citizenship (unemployment, exploitation, and other forms of marginalisation).  The urgency of this political project is palpable.

 

 

 

 

[1] This article was written on the 21/06/2016 this was before the EU referendum vote took place.

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The delinquent employers’ dilemma: settle or dissolve?

Employment rights in the news

Last week two very interesting (from Unpaid Britain’s perspective) stories hit the headlines. In the first, Mike Ashley, owner of Sports Direct, admitted that 15 minutes of pay was deducted from workers who arrived at work even a minute late. This is a high-profile example of the low-level “gaming” of employment contracts which Unpaid Britain is studying.  The second story saw former Chelsea FC doctor Eva Carneiro  accept a settlement from Chelsea shortly before she was due to testify to an Employment Tribunal (ET). The latter story illustrates a particular phenomenon which we have been examining, as this blog will attempt to explain.

The Employment Tribunal

Since March 2016 we have been analysing Employment Tribunal cases brought before London and Watford tribunal offices for unauthorised deductions from wages. This has so far involved a two week stint at the Bury St Edmunds employment tribunal registry. Even though employment tribunal judgements are public records they can only be accessed via terminals located in the basement of Bury St Edmunds county court. There, surrounded by disintegrating boxes containing paper copies of ET judgements, we went about selecting a random sample of judgments from London for the years 2012 and 2014 (before and after the introduction of fees). Details (parties, jurisdictions, general outcome) of the judgements had to be copied from an old computer screen onto our laptops (no digital downloads!). Then we had to find and scan the paper copies of the judgements. This was a lengthy task; many copies of the judgement are mis-filed and some are absent.

ET computers  ET roling Stacks

Companies House

Back at Middlesex, we reviewed the Companies House databases for the respondent companies named in the judgements. We sought to identify the company’s status, sector and identity of their directors. Companies House has two database systems, of which Beta is the more detailed. However many of the companies don’t appear on it especially if they had been dissolved a few years previously, so a constant transition between Beta and the second (WebCheck) is required.

Half way through this process we decided to examine our findings so far, and they suggest something very interesting about employers who settle.

Preliminary Findings[1]

What is interesting is the marked difference between the status of companies for the different outcomes of claims. Where the case has been “dismissed on withdrawal”, dismissed on settlement (as in the Carneiro case) or fails at a hearing the company is most likely to be still active. Where there is a default judgement (usually occurring when the respondent i.e. the company doesn’t respond to the claim or appear at the Tribunal) or the workers’ claim was successful the company is most likely to be dissolved through insolvency or other means.  What does this reveal regarding these companies intention, or the prospects of workers recovering their wages?

Dismissal on Withdrawal

21% of outcomes out of our preliminary sample were “dismissed on withdrawal”, meaning the “claimant informs the Tribunal through writing or in the course of a hearing that the claim or part of the claim is withdrawn”, following which the Tribunal issues a judgement ruling that the claim is dismissed. This leaves the actual outcome in terms of whether the worker was successful in getting their money unknown.  A case might be settled informally, or in cases such as that of Eva Carneiro a settlement was reached during proceedings and be classified as dismissed on withdrawal. Members from the Unpaid Britain project’s Advisory group call this type of settlement “napkin cases”, when a settlement is agreed and in some cases scribbled onto a napkin just before or during a hearing. However a dismissal on withdrawal could also occur where the claimant no longer wanted to pursue the case, (for reasons such as stress or feeling that the claim might not succeed).

Settlement

Where settlements take place, it may be assumed that the worker received  at least some of their money, but judgements stating that a settlement has occurred are the smallest group amongst our sample. We had many more cases classified as “dismissed on withdrawal”, and  wanted to investigate the likelihood that these had  been withdrawn due to a settlement occurring (this had been suggested to us by legal advisors). To do this we chose to compare the status of respondent companies where we know a settlement has occurred with that of those in cases withdrawn on dismissal. We found the Companies House status of respondents in cases dismissed on settlement to be very similar to those dismissed on withdrawal, with around 80% of companies still being active.  This is in contrast to the profile of other groups of respondents.

Default Judgements and successes

Looking at cases that were Default Judgements the majority of companies appear to have been dissolved, with only a small minority still active. This may not be that surprising: if they are about to be or are already insolvent, employers may be unable or reluctant to defend the case. However where the claim was heard and succeeded (the most common outcome) the majority of respondent companies are now either dissolved or insolvent – only around 30% are still active. Research done by the Department for Business Innovation and Skills  in 2013 found that only 32% of claimants whose unpaid wage claims were successful were paid in full. Larger companies were more likely than small ones to pay awards, and this may be explained by widespread use of insolvency and limited liability to evade payment.

Failed claims

In cases which were heard, but the claim failed, our preliminary findings show that 94% of respondent companies are still active.

What the findings suggest

These findings suggest to us that the majority of cases that are “dismissed on withdrawal” are actually settled before or during the hearing.

One further hypothesis is that if an employer expects to pay the money to their workers they are likely to settle before the hearing, only going ahead with a hearing where they are confident of winning. Settling reduces litigation costs for employers, especially if the unpaid wages claim is linked to other claims such unfair dismissal or discrimination.  Cases classified as being dismissed on withdrawal leave no evidence of guilt of non-payment. This enables the employer to maintain their image both in terms of brand as well as to other employees. Thus systematic non-payment of wages can carry on unnoticed/unchallenged.

Where employers have no intention of paying, however, they may simply fail to defend, leading to a default judgement, or go to a hearing and use insolvency and limited liability to protect directors from any personal cost. It could also be that losing the ET case pushes the company into insolvency, but given that most unpaid wages claims are for few hundred pounds, this could only apply in a minority of cases.

Although we still have a lot of work to do to understand the phenomenon of non-payment and employment tribunal claims, these preliminary findings are consistent with there being a group of employers who “game” the system with apparent impunity.

For the time being we will keep you all updated. Any comments on this blog or our research are as always greatly appreciated.

 

 

 

 

[1] The preliminary findings are based on 205 cases including unpaid wage claims, predominantly made in 2012, and for which the respondent company’s identity has been located at  Companies House. The most common outcome in these cases is that the case has been “dismissed upon withdrawal”.