Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                                          File No: CIS 3797/08

Administrative Appeals Chamber                                              

10 November 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF  APPEAL TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

Judge: P L Howell QC

                                          

Appellant:                      

Respondent:                   

Claim for:                      

Appeal Tribunal:                         

Tribunal Case Ref:        

Tribunal date:                

IN THE UPPER TRIBUNAL                                                                        File No:  CIS  3797/08

Administrative Appeals Chamber                                             

10 November 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant:                       Secretary of State for Work and Pensions

Respondent:                    [the claimant]

Appeal Tribunal:                        Derby

Tribunal Case Ref:         034/08/01325

Tribunal date:                 29 August 2008 (reasons issued 29.08.08)

DECISION OF THE UPPER TRIBUNAL

The Secretary of State’s appeal is dismissed and the first-tier appeal tribunal’s decision of 29 August 2008 that the claimant retained her previous status as a worker and remained entitled to income support from and including 15 September 2007 is confirmed.  

REASONS

Mr P L Howell QC:

     1.     This appeal by the Secretary of State is dismissed, as in my judgment there was no material error of law in the decision of the Derby appeal tribunal (Mr B T McArdle, chairman, sitting alone) on 29 August 2008 that the claimant had retained her right to reside in the United Kingdom as an EU migrant worker on 15 September 2007 (the relevant date for the purposes of the decision under appeal of 2 October 2007 removing her income support) and accordingly remained at that date entitled to income support on the claim she had made on 3 July 2007. 

     2.     In particular the chairman was entitled to find, as I understand him to have done on the facts and evidence before him, that the claimant’s longstanding employment relationship with her employer had not been properly terminated in such a way as to bring her worker status legally to an end by a handwritten piece of paper she mistakenly signed at the request of the employer on 10 September 2007, which referred to her maternity leave entitlement as having already ended on that date but was based on an incorrect calculation and notification by the employer in breach of its statutory duty.  Her own understanding, which was correct, had been that she was entitled to remain on unpaid maternity leave until early the following year without her contract of employment being terminated, and the chairman further found it was her belief and intention she would be doing so. 

     3.     On those findings, which are in my view supported on a slightly more detailed look at the facts and evidence than referred to explicitly in the tribunal’s combined decision notice and statement of reasons at page 45, its decision that the claimant retained her worker status and remained entitled to income support from 15 September 2007 was correct as a matter of law.  I am not therefore persuaded there is a case for setting it aside under section 12(2)(a) of the Tribunals, etc. Act 2007 even though the reasoning to get to that conclusion is less fully set out in the tribunal’s statement than it might be. 

     4.     The tribunal did not consider, and under section 12(8)(a) of the Social Security Act 1998 was not required to consider even though the decision under appeal to it was not actually made in its revised form until 1 May 2008, the possible effects of any later changes of circumstances on that award of income support: for example because of whatever happened about the claimant’s worker status when her entitlement to unpaid maternity leave actually did come to an end in early 2008, or when she got other employment.  Those are for the Secretary of State to consider separately in the light of this decision. 

     5.     The material facts were that the claimant, a single woman of Latvian nationality now aged 34, came to this country in October 2003 in order to work.  She succeeded in obtaining employment within a few weeks after her arrival and from then on worked continuously for the same employer, in a turkey-packing factory in company with a number of other Russian-speaking workers, for over three years until 9 January 2007.  On that date she went on paid maternity leave, being then eight months pregnant. 

     6.     As the chairman found, she still has only a limited command of English: as is understandable, she had not been able to improve this beyond a basic level, given the long hours and the type of work she was having to do, among fellow workers who were all Russian-speakers as well, only the managers at the factory speaking English.  She was obviously a good worker and there is no suggestion whatever of her employers at the factory having any reason at to be dissatisfied with her, or to want to get rid of her or intentionally deprive her of her employment rights. 

     7.     As a Latvian national the claimant duly obtained registration of her employment under the accession-state worker registration scheme, and having worked continuously at that employment for well over twelve months had long since ceased to be an “accession state worker requiring registration” by the time with which these proceedings are concerned, having by then the same rights as any other EU citizen migrant worker as regards employment and residence in the United Kingdom.  On 10 November 2005 she had been issued with a formal residence permit by the Home Office confirming that status, stated to be valid until 3 November 2010:  see pages 24 to 24a. 

     8.     The claimant took her paid maternity leave from her employment from 9 January 2007 and her baby was born on 13 February 2007.  Under sections 71 and 73 of the Employment Rights Act 1996 and the Maternity and Parental Leave Etc. Regulations SI 1999 No. 3312, as substantially amended by SI 2002 No. 2789, an employee in the position of the claimant was entitled to be and remain absent from work, without having her employment terminated, for two defined and successive periods: 

(1)    her “ordinary maternity leave” under section 71, which was a period of 26 weeks from the date she chose her maternity leave to start on 9 January 2007; plus

(2)    her “additional maternity leave” which because of the length of time she had already been employed was a period of a further 26 weeks, following on immediately from the end of her ordinary maternity leave period: 

see regulations 6 and 7 of the Maternity Leave Regulations in their amended form. 

     9.     Under regulation 7 there is a specific statutory duty on the employer to notify an employee such as the claimant, entitled to both ordinary and additional maternity leave,  of the date on which her additional maternity leave period will end: see regulation 7(6) and (7) introduced by the 2002 amendments. 

     10.     During her ordinary maternity leave period the claimant was entitled to statutory maternity pay, and there is no dispute this was paid to her by her employer throughout the 26 weeks down to and including 9 July 2007, her working week having been apparently from Tuesday to Monday. 

     11.     From the commencement of her additional maternity leave period on 10 July 2007 the claimant was not entitled to any further pay from her employer, though her contract of employment was not terminated, and she remained entitled to stay as an employee absent from work on unpaid leave until the end of the additional 26-week period early the following year.  It is established that an employee in that position remains a “worker” with continuing employment rights and status as an EU migrant worker, though no longer in “remunerative” employment so that she can qualify for income support: see the Commissioner’s decision in case CIS 4237/07 given on 28 August 2008, with which I entirely agree.

     12.     It is material to note at this point that before the changes to the regulations made in 2002 the computation of the statutory maternity leave periods had been quite different.  Under the original 1999 Regulations, the claimant’s additional maternity leave period would have continued only until the end of the period of 29 weeks beginning with the week in which she had her baby, which would have meant the maternity leave to which she was entitled would have come to an end in the first week of September 2007.

     13.     On 3 July 2007 the claimant contacted her local jobcentre about making a claim for income support from 10 July 2007, the day after her paid maternity leave finished, and duly submitted a  completed claim form on 6 July 2007.  There is no doubt that, apart from the question of her right to reside in the UK which is the issue in this appeal, she would as a single parent have qualified for, and been awarded, income support at all material times from 10 July 2007 onwards.

     14.     This was not however what initially happened because as a person who had come from outside the UK she was required to complete further forms for her residence status to be assessed before her claim was determined.  In these she declared that she was currently working in the United Kingdom, giving the name of her employer at the turkey factory and providing the requested registration card details, saying that she normally worked there 40 hours a week but her weekly hours were nil at present as she was on unpaid maternity leave.  She said she planned to stay in the UK permanently, had come here for employment and planned to support herself in the UK by working, and in answer to a question whether she had looked for work since coming to the UK said again that she was currently employed, though with “nil hours on unpaid maternity leave”. 

     15.     Some weeks after submitting her claim form and attending an interview she was sent a letter asking her to provide a copy of her contract of employment, and also verification from the employer of the official end date of her unpaid maternity leave:  see the letter dated 9 August 2007 at page 25.  She then contacted her employer and arranged a visit to collect the required details, taking with her a letter drafted for her by a community adviser in English explaining what was required.  Her visit to the employer took place on 10 September 2007 and at this point confusion appears to have set in.  Her written and oral evidence to the tribunal, which was accepted, was that she was asked if she had come back to start work again and said she could not do so at present.  She handed the adviser’s letter to a lady in the accounts department, who gave it back to her and then wrote out something on a piece of paper which the claimant understood to be the required details about the end date of her maternity leave entitlement.  The claimant was then asked to sign this which she did without it being further explained to her. 

     16.     In fact what she had signed was the handwritten letter at page 26 which is in the following terms:

“Dear Pam

Maternity Leave

I [name of the claimant] wish to leave the Company on the 10th September 2007 following the end of my maternity leave. 

Yours sincerely”

Underneath that is the claimant’s signature and underneath that is written:

“Maternity Started:  9-01-07

Maternity Finished:  9-07-07”

and against that is the stamp of the employer with the signature of its human resources manager (including an initial P, so she appears to have been the “Pam” in whose handwriting the brief letter was written out), and the date 10 September 2007. 

     17.     The claimant submitted this letter to the Jobcentre immediately, believing that it contained the required details to confirm that she remained on unpaid maternity leave to complete her income support claim.  Her evidence to the tribunal, which was again accepted, was that she had no idea it contained what appeared to be an indication of her wish to leave the company immediately on the assumption (as was of course incorrect) that her maternity leave entitlement had already come to an end.  This was the complete reverse of her intention, which was to return to the same employment, at least on a part‑time basis, by the actual end of her leave entitlement early the following year when her son was a bit older and able to be left.  She had not understood what was written in the letter until she again saw her community adviser some two or three weeks afterwards.

     18.     That was, it appears, about the same time as the departmental decision maker had issued the initial decision on her claim dated 2 October 2007 (since acknowledged to be wrong) purporting to determine that she was not entitled to income support at all on her claim from 10 July 2007 “because she had not verified that she had begun unpaid maternity leave”: see paragraph 4.5 of the departmental submission to the tribunal at page 2.  With some justification, the claimant protested and this produced a reconsideration of her rejected claim and a further decision, dated 7 November 2007 at page 31.  This revised and set aside the initial refusal, saying that the claim should not have been rejected out of hand as defective and that the question of her entitlement should be redetermined on the existing information. 

     19.     There was then a further delay while it was referred to a different office, and it was not until 31 March 2008 that the claimant was sent the further letter at page 32 which began “About you recent [sic] claim for income support” (not the most literate or accurate of headings: the claim had been made in the first week of July the previous year, and this is supposed to be a weekly benefit providing for immediate subsistence needs) and then told her that: 

“You need to provide a letter from [the turkey factory] stating the end date of your unpaid maternity leave.  You will also need to provide evidence that your employment has terminated, this can be either your P45 or a letter from your employer stating the employment termination date.”

The claimant then approached her employer again, and was provided with the typed letter from the payroll officer dated 9 April 2008 at page 33 which said

“Please accept this letter as confirmation that [the claimant] left … on 14 September 2007 following the end of her unpaid maternity leave.  Her paid leave started on 9 January 2007 and ended on 9 July 2007.”

together with the P45 at page 34, showing 14 September 2007 as her leaving date.  This was apparently freshly produced for the occasion, there being no evidence that she had been supplied with one, or with any other termination of employment documents, before.

     20.     On the basis of that information a decisionmaker on behalf of the Secretary of State gave two further decisions on her claim for income support of 3 July 2007 so as to complete the revision of the original rejection of that claim on 2 October 2007.  The first awarded the claimant income support from 10 July 2007, which was the first day of her unpaid maternity leave, down to and including 14 September 2007 which was held to be the date on which she had terminated her own contract of employment.  The second was the revised refusal decision which came under appeal to the tribunal.  By this the Secretary of State determined that from and after 15 September 2007 the claimant was not entitled to income support, on the ground that having terminated her own contract of employment on 14 September 2007 she had thereby ceased to count as a “worker” on unpaid maternity leave.  Accordingly she had forfeited her right to reside in the United Kingdom in that capacity, and from then on was no longer in the United Kingdom as a worker exempted under regulation 21AA(4) of the Income Support (General) Regulations SI 1987 No. 1967, meaning that she was required to be treated as a “person from abroad” with an applicable amount for income support purposes of nil:  see page 35 where the substance of the decision so far as the residence issue is concerned is set out. 

     21.     It was thus the original refusal decision of 2 October 2007, as so revised under section 9 Social Security Act 1998 for the period of claim from 15 September 2007 onwards, that finally came before the appeal tribunal for hearing on 29 August 2008.  The tribunal allowed the claimant’s appeal against the refusal and held her entitled to continuing income support from 15 September 2007, as recorded by the chairman in his short combined decision notice and statement of reasons at pages 45 to 46, issued on the same day as the hearing. 

     22.     The case depended entirely on the single issue of fact of whether the claimant had terminated her own contract of employment on 14 September 2007 as a result of signing the piece of paper put in front of her by the human resources manager on 10 September 2007 (the discrepancy between the two dates is not explained).  There is no room for dispute that applying the established principles referred to above, unless she had done so she would have remained a “worker” for the purposes of Council Directive No. 2004/38/EC and therefore exempted from the “persons from abroad” category for regulation 21AA at any rate until the end of her additional 26-week maternity leave period, which according to my reckoning would have not been until 7 January 2008, a few weeks before her son’s first birthday. 

     23.     There was no evidence of any separate action by the employer to determine her contract or treat it as terminated, nor would it have been lawful for it to do so.  It was also completely unnecessary for the claimant to take any action to terminate her own contract on 10 or 14 September 2007 and as events have demonstrated it would have been utterly irrational and contrary to her interests, as well as to her own assertions that she continued to be on unpaid maternity leave, for her to do so.  The tribunal chairman as already noted found expressly that this was the reverse of her actual intention, and in my judgment that was a justified finding on the evidence before him. 

     24.     Nor in my judgment is there any more ground for thinking that the employer had any real intention of depriving the claimant of her employment rights or of her right to remain on continuing unpaid maternity leave before the actual end of her statutory entitlement period.  The evidence suggests they would have been quite happy to see her back as a worker, and the most likely explanation is that the whole thing was a most unfortunate muddle by the human resources lady miscalculating the end of the claimant’s additional maternity leave period entitlement on the spur of the moment.  Whether she overlooked the additional maternity leave period altogether (as suggested by “Maternity Finished: 9-07-07”) or whether she miscalculated it by applying the old rules under the unamended 1999 Regulations (as suggested by “10th September 2007 following the end of my Maternity Leave”: see paragraph 12 above), the net result is that she, or rather through her the employer, failed to carry out its statutory duty under regulation 7(6) of the amended regulations to notify the claimant of the true end date of her additional maternity leave period which was not until the following January. 

     25.     No employer in my judgment would be able in those circumstances to rely on the mere fact of the claimant having signed the letter of 10 September 2007 at page 26, whose contents she did not understand and materially misrepresented that her maternity leave entitlement had already ended, as amounting to a clear unilateral termination of her subsisting contract of employment from that date, or for that matter from any other. There was as I say no evidence of the employer having taken any separate action of its own to bring her contract of employment to an end, and its letter and P45 form identifying the date of leaving as 14 September 2007 appear, as already noted, to have been only produced a long time afterwards: anyway the Secretary of State’s decision under appeal was based solely on the assumption of a unilateral termination by the claimant herself.  In  those circumstances the tribunal chairman was justified in holding that the claimant had not intentionally terminated her employment and had not, in fact and as a matter of law, unilaterally done so.  If the employer had taken any action to treat her contract as terminated or repudiated on the basis of the letter, she would have had a cast-iron case for reinstatement so as to preserve her continuity of employment and worker status.  That being so, whatever may be the position in more normal cases of dismissal, I do not accept the Secretary of State’s submission of 3 April 2009 at page 99 that the chairman here was bound to hold she had lost her worker status by the action of her employer terminating her contract even though she might have made a complaint about this to the Employment Tribunal.  I think he was entitled to look at the substance of the matter for himself. 

     26.     In my judgment therefore the tribunal chairman was justified in the decision he reached, and although his reasoning is stated only very shortly in the decision notice and statement he issued on the date of the hearing, the more detailed reasons set out above serve only to support the conclusion he reached: in particular taking into account the claimant’s continuing entitlement to additional maternity leave and the employer’s duty to notify her of the correct end date, and the effect these have on whether the letter she signed on 10 September 2007 could fairly be relied on against her as an effective unilateral termination of her own employment contract against her own clear interests.

     27.     In those circumstances the tribunal chairman was in my judgment correct in law in holding that the claimant had not forfeited or abandoned her status as an EU migrant worker unilaterally at a time when she had no need or reason to, and accordingly remained entitled to income support from and including 15 September 2007 onwards.  The conclusions I have reached do not depend on the further issues of “non est factum” or the status of the claimant’s residence permit referred to in the written submissions of both sides (all of which I have read with interest, and for which I am grateful), so it is not necessary for me to pronounce on those difficult questions here.

     28.     As already noted this leaves for further consideration the question of how long after that date she continued to meet the conditions of entitlement to income support: in particular following the true end of her maternity leave entitlement period in January 2008.  Those questions were not of course before the tribunal and it is not necessary for me to attempt to deal with them here, nor do I have the facts to do so.  It must be a matter for the Secretary of State to consider in the usual way whether the award should be superseded or altered from any later date (before or after the eventual revising decision given on 1 May 2008) by reason of a change of circumstances or otherwise. 

     29.     The appeal is dismissed accordingly.

P L Howell

Judge of the Upper Tribunal

10 November 2009

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