Mutuality of obligation… the irreducible minimum.

For some time now, I have been concerned that the workfare programme is illegal, particularly around the contract issue.

So with a bit of time on my hands today, I decided to look at this in some more detail. I should point out that I am by no means a legal expert, although I do have an interest in the law and deal with statutory legislation in my job.

A contract can be written, verbal or implied and the structure of a contract (as a minimum) must take the following form;

1) Consideration

2) Offer 

3) acceptance

4) Mutual assent

5) capable parties

In Chadwick v Pioneer Private telephone Co Ltd [1941] 1 All ER 522 523D the judge said,

“a contract of service implies an obligation to serve and it comprises some degree of control by the master” 

There can be no doubt that the work provider is the “master” in the “relationship” as demonstrated in this publication from DWP (I’ve highlighted the sanction process information which illustrates a high degree of control)

Key interactions with Jobcentre Plus 

21. While the participant is on the Work Programme, you will need to work
together with Jobcentre Plus in the following ways:
• Jobcentre Plus will notify you about any relevant changes in the
participant’s circumstances. There are also some changes we expect
you to inform us about (Further information can be found in Work
Programme Guidance Chapter 5 – Change of Circumstances).
You are expected to facilitate the Sanctions process by engaging
promptly with Jobcentre Plus Decision Makers when participants have
not complied with mandatory activity.
• Where JSA participants are undertaking certain kinds of full-time
training, you will be expected to notify Jobcentre Plus that they need to
be moved onto Training Allowance (Further information regarding
Training Allowance can be found in Work Programme Guidance
Chapter 17 – Training Allowance).
• Some participants may be required to attend mandatory interventions
with Jobcentre Plus. For example JSA participants will be required to
attend their Jobsearch Reviews and other mandatory interventions at
Jobcentre Plus, you should ensure that nothing you require of
participants prevents them from attending these appointments.
22. You will be required to supply an exit report to Jobcentre Plus for those
participants who complete the Work Programme and return to Jobcentre
Plus. This will help Jobcentre Plus make a decision on the appropriate
next steps for that participant. (Further information regarding exit reports
can be found in Work Programme Guidance Chapter 10 – Completing the
WP).

Now, hopefully you’re still reading … so to underpin the master/servant relationship even more, Judge McKenna in Ready Mixed Concrete (South East) Ltd v Minister of pensions and National Insurance [1968] 2 QB 497 515 stated;

“a contract of service exists if these three conditions are fulfilled:-

i) the servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master

ii) He agrees, expressly or impliedly, that in the performance of that service, he will be subject to the others control in sufficient degree to make that other master

iii) The other provisions of the contract are consistent with it being a contract of service.

Clearly, the DWP must have considered this concept at some point because, Johnny Void over on the Void blog, discovered this (now removed) information on the DWP website

work-programme

So the DWP are telling workfare providers that they must mandate participants in order to escape National Minimum Wage requirements.

Personally, I think they’ve got the wrong end of the stick. The mandation is a separate issue from the contractual one.

The point is a contract has been formed between DWP and the claimant, the DWP in effect sub contract their dirty work (sanctions) to the workfare provider.

It could be argued that the DWP have breached the contract because there has been no mutual assent and it could be argued that the claimant is not a capable party, especially if the claimant is ill, disabled, vulnerable or has mental health issues.

So those are my thoughts that I have been mulling over;I don’t know if there are any legal minds out there who will either tell me I am wrong or alternatively explore this issue after all, as far as the DWP and it’s ministers go, I have a saying;

No matter how high you think you are, the Law is ALWAYS above you

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36 Responses to Mutuality of obligation… the irreducible minimum.

  1. This has always bothered me. The principle of unemployment benefit is to provide support in the absence of work being available. If people signing on are allocated to work for a normally paying employer (as opposed to a charity), then obviously there is a job to do and why isn’t the employer paying for it? If the government provides free labour, why would any sane employer pay anyone? This policy undermines job creation. It is crazy.

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  2. jess says:

    There are two basic principles of law breached by the DWP on this (outwith the ‘contract’ issues;.

    Firstly, it is a fundamental of contract law that both parties freely agree to the terms. The key word here is ‘freely’. If a contract is drawn up without the ‘freedom’ of both parties, it is, in law, null and void.

    And the second principle is a Common Law ‘Duty of Care’ under which any body is obliged to consider any harmful effects their actions may inflict on another party.

    I don’t think anyone would consider the way sanctions are mandated (indeed, they are built into the system) demonstrates an awareness of ‘Duty of Care’

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    • So are you seeing it the way I am Jess or do you think I’ve got the wrong end of the stick?

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      • jess says:

        Apologies for lack of clarity

        I am agreeing with you, but just trying to approach the same end of the stick from a slightly different angle

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      • Sounds good to me 🙂 I just think DWP have created a contract but then proceed to be in breach of it. The Law is fascinating of course … Common Law (sometimes called law of the land) is what we all know as wrong; murder, doing another harm or causing them to suffer a loss. As a seafaring nation, the law of the land was inappropriate so Admiralty Law came into being. A modified form of which we use today; that’s why we stand in the “dock” when giving evidence. Of course Admiralty Law (the law of tort – wrongdoing) was in effect temporary as it only applied whilst at sea and then would revert to law of the land when back on terra firma.
        The thing to remember is all the Acts of law we have today are just that; they ACT as the law and as such can be overturned (by judicial review) so all these rules and regulations DWP try and hold over people are nothing more than pretence.

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      • jess says:

        Again, agreed

        But there does remain one small item not addressed

        Most of the “these rules and regulations DWP try and hold over people” are not strictly scrutinised by Parliament, Statutory Instruments (SI’s), the legality of which is open to challenge, according to what was then the Treasury Solicitors Office

        The primary function of SI’s was to get emergency regulations onto the statute book quickly during a time of emergency. But they became, after the second world war,, a means of slipping through ‘small’ changes in Parliamentary Acts, without any real scrutiny

        There is a small summary of the position here
        http://en.wikipedia.org/wiki/Statutory_Instrument_(UK)

        Neither party, in government has been sparing in their use of them

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    • untynewear says:

      @jess – “Firstly, it is a fundamental of contract law that both parties freely agree to the terms. The key word here is ‘freely’. If a contract is drawn up without the ‘freedom’ of both parties, it is, in law, null and void.”

      That is basically what I fought Job Centre modification of my Jobseekers Agreement on… and won ! Which is why I now have a Jobseekers Agreement which exempts me from having to sign up for Universal Jobmatch.

      So its definitely a course worth persuing, I reckon.

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      • Well done untynewear… knowledge is power!

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      • jess says:

        Agreed, nice one untynewear, lets hope more people get to realise that this is a principle worth keeping in mind.

        Did you have to quote legalese at them by the way. If so, care to share it?

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      • untynewear says:

        @jess – it was a long drawn out affair, over several appointments. One thing I quickly discovered was that the Jobcentre advisor had no knowledge whatsoever of contract common law. My own was minimal, but enough I think to sow the seeds of unease in their minds. The case went to the DWP Decision Makers twice, and I still ended up with what i wanted, so it is possible, but you have to stick to your guns and push them all the way. I actually wore out one advisor, and had a go at reducing the replacement to a nervous wreck – the thing is, they’re just not used to people saying “No – I’m not having this, and YOUR rules say I dont have to.”

        Re. Universal Jobmatch – as I understood their own rules, you DONT have to sign up for UJ, just have an online profile with a jobsearch site. So I nominated Indeed.co.uk instead. The DWP Decision Maker passed it without comment. Jobcentre appealed, DM passed it again – so there you are. My jobseekers Agreement only requires me to check Indeed daily.

        When my jobcentre gets around to introducing the Claimant Commitment I’ll no doubt have to start all over again (assuming I’m still having to claim), but I’ll cross that river when I get there.

        Some of this I posted here –

        http://unemployedtynewear.wordpress.com/2014/01/12/jobseekers-agreement-fun-games-part-1/

        – and subsequent posts in the ‘Jobseekers Agreement’ section of the menu. There’s more to add, I’ll get around to updating the situation eventually – some aspects are still unresolved at present.

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      • Once again untynewear well done! Grind the buggers down, just like they try to do with the claimants and Jess is right … make them live by their own fiction!

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      • jess says:

        Thanks @untynewear

        The theory of a ‘free contract’ is undoubtedly the same myth as that of a ‘free market’. But since the policy makers at that Department seem happy to embrace myths, it is only fair that their beliefs should be used against them.

        It is no surprise at all that the ‘advisors’ had no concept of the underlying principles to the doctrines they enforce. It would surely be worth watching their faces as claimant after claimant produced the relevant volumes of Locke and Smith, demonstrating what a load of nonsense it is they have to enforce.

        But again, thanks, for taking the trouble to reply.

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  3. Gazza says:

    Thanks for pointing this out – it allways bothered me in tryng to get my head around the distinction of claiming benefits and workfare. From what I know of the law [had to do a bit of digging vis a vis a gov. job I was doing a while back that included unpaid wages] this feels spot on.

    Like

  4. sdbast says:

    Reblogged this on sdbast.

    Like

  5. beastrabban says:

    Reblogged this on Beastrabban’s Weblog and commented:
    Interesting perspective by Glynis on the contractual relationship supposedly underpinning workfare. Glynis argues that this does not exist, as it is not the result of two freely contracting parties, but of coercion: the claimant is forced into workfare, whether or not he or she wishes to go. My guess is that the Tories and their Lib Dem lickspittles simply see workfare as a condition of the contract between the claimant and the state. The state will provide the claimant with a limited income while he tries to find work, provided he provides certain services for the state and its subcontracting private contractors. The idea is that if you object to those conditions, you are free to try your luck at getting an income by some other means. Nobody is forcing you to claim job seekers allowance. Of course, the opposite is true despite this contractual façade. The unemployed claim job seekers allowance not because they want to, but because they have no choice. If they don’t get an income, they starve, lose their house and so on. Neither do they have a choice about the conditions imposed on them. In a commercial contract, which the ideology behind the conditionality introduced into the benefits system apes, one of the contracting parties may be able to negotiate some of the terms and conditions. For example, an individual with a particular set of specialist skills required by a company may be able to get a better deal concerning pay and conditions than that originally offered. You can see this process go on in the complex legal undertakings regarding some very high-earning pop stars. There is no such leeway for negotiation involved in the workfare contract. The claimant cannot renegotiate it in his or her favour. They have to accept it.
    The contractual nature of the agreement also does not remove the fact that the claimant’s freedom has been removed here. The same is true of the instances in which people sold themselves into slavery or serfdom in the Middle Ages. This was done to avoid starvation. In return for their service, their master was obliged to feed and support them. Nevertheless, they had lost their freedom, and the master held absolute power over them.

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    • You put it so beautifully Beast 🙂

      Like

    • jess says:

      The Tories view ‘contracts’ through the lens of John Locke, who in his second Essay on Government suggested;
      “freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man’s preservation, that he cannot part with it but by what forfeits his preservation and life together. For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases. Nobody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it. Indeed, having by his fault forfeited his own life by some act that deserves death, he to whom he has forfeited it may, when he has him in his power, delay to take it, and make use of him to his own service; and he does him no injury by it. For, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.”
      Essay II, Ch IV § 22.

      They overlook (quite wilfully) what Locke suggested in his First Essay;

      “”As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty as will keep him from extreme want, where he has no means to subsist otherwise: and a man can no mare justly make use of another’s necessity to force him to become his vassal, by withholding that relief God requires him to afford to the wants of his brother, than he that has more strength can seize upon a weaker, master him to his obedience, and with a dagger athis throat offer him death or slavery.
      [Essay I Ch. IV: §42]”

      Which is not to suggest that the tory philosophy has any philosophical grounding (or indeed that RTU has even heard of Locke, let alone read him)

      Quite the reverse. As with other bits and pieces of their ‘creed’ they cherry=pick whatever they feel justifies their actions. Rather than the other way round. As kittysjones has shown quite well in one of their blogposts recently
      http://kittysjones.wordpress.com/2014/07/21/camerons-gini-and-the-hidden-hierarchy-of-worth-2/

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  6. Jenny Hambidge says:

    Indeed, is workfare a job or a punishment? If it is a job then it should be subject to at least a minimum wage rate of pay, even if this is provided by the government under an agreement with the workfare provider. The workfare provider should also be rewarded in some way : this is the only fair way to do it if they are having to train, interact with DWP, provide work etc.For the whole thing to be of any use the worker should feel the benefits of having a job both psychologically and financially. Idealistic perhaps.

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    • That’s a good question Jenny. Job or punishment, especially when you consider that community work placements far outstrip any community service a law breaker has to endure. The other thing as well is that when people are on any workfare placement they are taken off the unemployment stats – so on one hand DWP are saying it’s not work for the purposes of National Minimum Wage but it is work for the purposes of taking you off the unemployment stats aaarrrggghh!
      My FoI request to DWP about that is here

      https://www.whatdotheyknow.com/request/unpaid_workfare_style_programmes#comment-49177

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    • Anonymous says:

      If a Martian (or just a time traveller from the early years of the welfare state) saw the ‘guidelines’ quoted:

      “• You are expected to facilitate the Sanctions process by engaging
      promptly with Jobcentre Plus Decision Makers when participants have
      not complied with mandatory activity. ”

      they’d assume it referred to dangerous criminals, NOT some of the most vulnerable members of society.

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  7. HomerJS says:

    I think the key ‘belief’ that lies behind the Tory thinking is the ‘something for nothing’ fallacy. “If we are going to give you this money then we want something from you.” I call it a fallacy because we already give something for this money, and I’m not just talking National Insurance. When we are born we have very little choice about anything until we are 18, and even then our options are limited. We are not allowed to reject society and set up our own systems, and if you are thinking ‘travellers’ then a little research can show how they, just like everyone else, are subject to the laws of this country. I believe the welfare state recognises this, and also that it is impractical to give everyone such freedoms. In exchange for our ‘forced’ acceptance of citizenship the state will provide for us. JSA was originally set up to be at a higher level than mere subsistence as it was recognised that people would require more to ensure that they could be ‘work ready’. For me the reduction in JSA, via the failure to keep up with inflation, is a breach of the jobseekers contract. But it is a breach by the Jobcentre/DWP/Government. I think that if people looked at the agreement between claimant and jobcentre, that there would be many possible failures that were on the part of the jobcentre.

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    • Good comment HomerJS and you’re right it’s not something for nothing, it’s something for something by way of the contributory principle based on the National Insurance contributions you’ve paid during your working life (or home responsibilities protection in respect of child benefit) Of course, I know there are those who have never contributed NI, such as children with disabilities who go on to be adults with disabilities, but in a fair society, those who contribute expect that some of their contributions will go to those less fortunate than themselves.

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  8. jaypot2012 says:

    I wonder if the same laws would come into Scottish Law? I know that our law is a constitutional right, along with education.
    I just wonder if there is a way around the law in Scotland that may be of help in England, Wales and Northern Ireland, (I don’t know if they have constitutional law?), or vice versa…

    Like

  9. jaypot2012 says:

    Reblogged this on Jay's Journal and commented:
    A great discussion – join in with your thoughts…

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  10. Anonymous says:

    The workfare/sanctions regime seems to be very, very close to debt bondage.
    http://www.allpartygrouphumantrafficking.org/the-issues/debt-bondage

    An aspect of debt bondage is that the value of a person’s work is never reasonably applied towards payment of their debt, making escape impossible.

    ALL work in the UK legally has a value that is equal to or greater than the minimum wage, and the terms/conditions are supposed to be set out in a contract of EMPLOYMENT. But in workfare, claimants are ‘mandated’ under ‘jobseekers’ agreements’ into which they are coerced, and a wage is NOT paid. (JSA and ESA are benefits, and not remuneration for services performed – despite IDS’s bizarre protestations on national television last year to the contrary).

    So there seems to be a very dubious legal relationship, if any, between JSA/ESA and the value of a person’s work.

    DWP ‘conditionality’ now sends a strong message to the unemployed and disabled that they have a ‘debt to society’ (exactly like criminals) that they must repay, and forced labour is presented as the means for them to pay down that debt. (Of course a criminal consensually breaks a law or social contract to incur their ‘debt’. This does not apply to those struck down by illness or redudancy against their will).

    JSA is well under half the minimum wage, yet those on workfare perform (at least) a minimum wage job, while receiving less than half of the minimum the law states their services are worth. The impact of this on a person’s life and family is no different to what it would be under a hefty attachment/distress against their wages to pay down a court fine or a debt. (In reality court deductions would probably be FAR less punitive).

    A crucial difference between workfare and criminal justice, is that fines legally imposed by the courts can eventually be cleared. But the ‘debts to society’ of benefit claimants will NEVER be paid down, becase the near two thirds docked from the (minimum wage) value of their weekly pay, is not being applied by the government against that so-called debt, but pocketed by the companies to which the forced labour is trafficked.

    Under ‘Help to Work’, the forced labour and sub-minimal income regime will be permanant for those with little prospect of ever being taken on by an employer. And when leaving the scheme means sanctions, final destitution, and becoming a statistic in the already mounting death toll As such the impact workfare has on lives very closely resembles debt bondage.

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  11. Reblogged this on amnesiaclinic and commented:
    This is very interesting. Just shows what can be achieved with a little spare time and patience.
    Gradually the more people who overturn this the sooner this nonsense will end.
    Well done!
    x

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