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JSA - EU Retaining Worker Status

 

J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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The more I read this area of law the more confused I get. If someone has any spare time I would really appreciate some answers/views to the following questions regards when an EU National can keep their worker status…

i) I understand that when an EU national loses a job through no fault of their own eg redundancy or end of contract, they can keep their worker status.
ii) If this is so, how long must the EU National have worked before retaining their worker status eg 1 week, 4 weeks, 3 months etc.
iii) Again if I am correct as above, the work that they must have carried out for the time scale concerned (whatever that may be) must be at least 8 hours per week at least earning the minimum wage.
iv) Does the EU National only keep their worker status if they immediately sign on for JSA and are in a position to take up new work asap or can 1 or 2 weeks on the sick have no bearing on this.
v) Do they automatically regain their worker status as above if the JSA claimed is Cont Based.
vi) If the above is correct what happens when they revert to Income Based JSA after 6 months.
vii) Can worker status be kept for a maximum time of 6 months.
viii) Is there any particular year and month when keeping worker status stops.

Finally if an EU National has retained their worker status for any of the above reasons then are they allowed to receive Housing Benefit at the same time.  Many thanks in advance.

NB If Worker status can be kept due to temporary illness or injury, does the illness/injury MUST be a result of the employment.

      [ Edited: 8 Apr 2018 at 04:34 pm by J.Mckendrick ]
HB Anorak
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i) I understand that when an EU national loses a job through no fault of their own eg redundancy or end of contract, they can keep their worker status. Yes
ii) If this is so, how long must the EU National have worked before retaining their worker status eg 1 week, 4 weeks, 3 months etc. No fixed minimum time, but the work needs to have been effective and genuine.  In the Barry v Southwark case a two week job stewarding at Wimbledon tennis championship was effective and genuine - “never mind the length, feel the quality”
iii) Again if I am correct as above, the work that they must have carried out for the time scale concerned (whatever that may be) must be at least 8 hours per week at least earning the minimum wage. Again, no fixed numbers apply.  8 hours a week over a long period, or a cut in hours to 8 a week in a long term job for example could be effective and genuine
iv) Does the EU National only keep their worker status if they immediately sign on for JSA and are in a position to take up new work asap or can 1 or 2 weeks on the sick have no bearing on this. If they are fit to work, they should show signs of seeking work immediately but not necessarily sign on immediately.  If you are still living off last month’s salary, or a small amount of savings, you might hope something will turn up quickly so there is no need to go through the hassle of signing on.  If they are unwell at the point when they leave their job, they retain worker status until they get better - they are not expected to seek work at first.  They dont have to claim ESA to prove their illness
v) Do they automatically retain their worker status as above if the JSA claimed is Cont Based. Not automatically - again the question is whether the work was effective and genuine.  But entitlement to conts based JSA tends to indicate a fairly solid recent work history so it’s a better position to start from than JSA(ib) only
vi) If the above is correct what happens when they revert to Income Based JSA after 6 months. The Immigration (EEA) Regs 2016 say (in the most ridiculously tortuous way) that you lose your worker status after six months, although people who worked for longer than a year do not automatically lose it - for them the evidence bar is raised to GPOW.  But essentially, the expiry of JSA(c) in itself is not significant - it’s just that it happens to coincide with the expiry of retained worker status under the immigration regs.  Two things, both with a six month life span. Having said that, Tribunals aren’t that bothered about arbitrary time limits on retained worker status - they tend to ask themselves the question “is s/he still actively engaged in the job market”
vii) Can worker status be kept for a maximum time of 6 months. See above
viii) Is there any particular year and month when keeping worker status stops. See above
Finally if an EU National has retained their worker status for any of the above reasons then are they allowed to receive Housing Benefit at the same time. Yes they are  Many thanks in advance.

NB If Worker status can be kept due to temporary illness or injury, does the illness/injury MUST be a result of the employment. Not for retained worker status - all that is required is that the person is temporarily incapacitated.  If the incapacity is permanent, then it is possible to obtain a permanent right to reside more easily if the illness/accident was work related.  But if you are looking at retention of worker status during temporary incapacity, it does not matter how the incapacity arose.

      [ Edited: 9 Apr 2018 at 07:37 am by HB Anorak ]
J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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Many thanks for your feedback.

     
J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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FAO MR HB Anorak,

Many thanks for the reply but if you have time please can you answer one more question or clarify my point….

The same EU national arrives in the UK and successfully claims IB JSA after 3 months after his arrival. He is not allowed HB.

He/She then takes up a 2 week contract working at Wimbledon working 8 to 16 hours a week. At this point he is entitled to HB as being deemed a worker.

After the 2 weeks his contract ends so becomes involuntarily unemployed and therefore keeps his worker status. So can client claim IB JSA indefinitely whilst being allowed to claim HB at the same time ie client acquires the sort after status of retained/worker status just after a 2 week paid stint and thereafter can claim IB JSA on and on and with HB on top.

Many thanks.

     
Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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2 weeks employment working 8 to 16 hours per week is unlikely to be deemed genuine and effective - the caselaw previously quoted was, as I understand, 2 weeks full time employment.

Even if the employment was deemed to be genuine and effective, this would not allow indefinite retained worker status. See HB Anoraks analysis in vi.

     
Ruth Knox
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RAISE Benefits Advice Team, Liverpool

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There’s a huge amount of case law on “genuine and effective” - as colleagues have said it all depends on the particular circumstances. But I will try to attach I made about two years ago