Alice Carse, barrister, Devereux Chambers
Testing the fairness of workfare
A legal challenge to ’workfare’ schemes could be trumped by the state’s right to provide training
Alice Carse, barrister, Devereux Chambers
The requirement on certain recipients of Jobseeker’s Allowance (JSA) to work for businesses on unpaid work experience schemes or risk losing their JSA payments, while there is no obligation on the business for which they work to pay a wage, is alleged to amount to exploitation of the unemployed in favour of business, or even forced labour.
There is a number of schemes operating under the umbrella of what is known as ’workfare’. The two that have attracted particular controversy are, first, ’Mandatory Work Activity’, which is aimed at jobseekers deemed to have little or no understanding of what is required to obtain and keep employment (failure to participate can lead to loss of JSA); and second, the ’Work Programme’, whereby jobseekers are required to undertake work placements to continue receiving JSA. Under neither scheme are participants paid wages for their work.
The idea of workfare is that getting jobseekers working, even if not in return for a wage and with the alternative being the likely loss of JSA, equips them with the skills necessary to successfully apply for jobs while providing a sense of purpose and motivation.
Mandatory Work Activity and Work Programme are targeted at the two groups that most concern the Government - the long-term unemployed and the young unemployed.
Those who believe that these schemes amount to forced labour may look first to Article 4 of the European Convention on Human Rights (ECHR), which states that nobody shall be required to perform forced or compulsory labour and which was incorporated into domestic law by the Human Rights Act 1998.
Jurisprudence of the European Court of Human Rights provides that it is lawful to require a person to obtain employment or lose welfare benefits, and it would not be a huge extension of this principle to find lawful a requirement that someone takes part in a work placement scheme that provides them with skills or lose their welfare benefits.
Further, such a scheme could fall within the exception to the prohibition on Article 4 of the ECHR where a person is complying with their normal civic obligation.
The issue is really whether there is a right to remuneration. Those looking for such a right will find it in Article 4 of the European Social Charter (ESC), which has been signed up to by the UK but never ratified.
Although not directly enforceable in the domestic courts, the ESC provides guidance on how a court might approach a challenge to workfare on human rights grounds. Article 10(4) of the ESC contains the right to vocational training in that states should undertake to provide or promote, as necessary, special measures for the retraining and reintegration of the unemployed.
It is likely that the workfare initiative being pursued by the Government is just such a measure, based on the objective of getting jobseekers working, and that any interference with their human rights would be proportionate on the basis that they receive JSA while having the opportunity to improve their skills, which is deemed to deliver a net benefit to the labour market.
View results 10 per page | 20 per page
Readers' comments (13)
Anonymous | 5-Mar-2012 11:07 am
The Social Security Advisory Committee made a Key Recommendation:
" We recommend that mandatory work activity does not proceed."
"The Committe are concerned that placements should not be used by employers as a way to obtain free labour and especially if it were at the expense of a paid post. We feel that an employer could potentially work around the requirement of additionality by providing a rolling placement, whereby they take on a different individual every four weeks for a lengthy period of time, and in doing so be able to fill a post at no cost."
That's what it's all really about, a steady flow of free labour for big business.
Unsuitable or offensive? Report this comment
Anonymous | 5-Mar-2012 12:22 pm
I am in my 50's and find myself out of work dispite many job applications. I am now faced with what I feel is perscutuion through the work programme after being failed by the jobcentre. Training is welcomed but forced 30 hours a week doing things like stacking shelfs isn't training and while business/shops and the like take 'workfare' people they will see no need to employ new staff. Doesn't seem a sensible way of supporting people into work. I personally feel very degraded and insulted by the government and workfare providers who have the wrong attitude. Its not a case of working for your benefits that is the problem, the problem is knowing at the end of the placement there still isn't a job.
Unsuitable or offensive? Report this comment
Kay Fabe | 5-Mar-2012 4:19 pm
I'm hearing of people on Workfare being forced under threat of sanctions to endure NLP sessions, NeuroLinguistic Programming. How is this training? Answer is it isn't, it's complete and absolute nonsense. At best it's brainwashing that doesn't even work! This is an appalling misuse of the taxpayers money and should be stopped immediately. It serves to show one thing, if that's the best the government can do then they shouldn't ever have been the government!
Unsuitable or offensive? Report this comment
TismeK | 5-Mar-2012 5:58 pm
Let's accept the premise that the Workfare programme is legally mandated "training". If that is the case then the onus should be on the employers to achieve certain criteria in order that the employees actually acquire the skills they need to find work once the work placement has been completed. The problem is, there are NO criteria. There is no effort being made to address the reasons - disability, learning difficulties, drug/alcohol abuse, poor education, poor social skills - these people are unemployed in the first place. In addition, those that HAVE skills are not being given transitional training to enable them to 'switch' careers in order to find employment. In addition, there is no training in the Workfare programme to enable people to transition from management level to manual labour or visa versa. In short, my biggest objection is that it neither covers the letter of the "law" nor the spirit. To the Government's get out I say this: define "training".
Unsuitable or offensive? Report this comment
Steven | 5-Mar-2012 10:22 pm
I am no lawyer or leftie but it IS forced labour (ie slavery) if the work is not paid for at the National Minimum Wage or its equivalent. As such it is an unacceptable abuse of the unemployed by a vicious and uncaring government. The poster above who mentioned it as free labour has got it spot-on. Simply put, it is the Nasty Party's way of getting around the NMW which they don't agree with and no doubt getting a few backhanders from their big business mates for services rendered.
Unsuitable or offensive? Report this comment
Jenny smith | 10-Mar-2012 9:49 pm
What about the sick and disabled who will be mandated.It is wrong
Unsuitable or offensive? Report this comment
Zoltan | 12-Mar-2012 0:29 am
Saying that workfare is part of a 'normal civic obligation' under ERHC Article 4 is nonsense. Rich folk that just live off the earnings of investments don't have this 'normal civic obligation' to work for nothing for profit making corporations.
Clearly the program is in breach of Article 4 because it discriminates against the unemployed. Does the queen have to stack shelves in some capitalist venture as part of her 'normal civic obligations'?. How can working for nothing for a capitalist profit led company be part of anyone's normal civic obligations?. All the spin and hype about this being an opportunity for people is just that spin the only opportunity here is for fat cat investors to exploit the poorest in society. If there's work to be done in your business, which there obviously is then pay a living wage.
Unsuitable or offensive? Report this comment
Anonymous | 20-Mar-2012 11:41 pm
I got caught up in some EU funding fiddle in Bournemouth. Ostensibly, I was on a 'placement' with a charity (Bournemouth Churches Housing Association), but they found me a 'work experience' placement of 30 hours a week (unpaid) with a private company (others went to Wilkinson and similar shops). The actual DWP contract holder was Bournemouth University - BCHA were just their sub contractors.
There is a 'like for like' funding arrangement with the EU, if you are doing a placement with some 'social benefit', so the entire thing is a screwover of EU funds but no solicitor is remotely interested in the HR Act in Bournemouth (if you're unemployed you must be sponging, workshy etc etc).
Seems to me that those at the top are sponging and fiddling far far more than anyone at the bottom.
Unsuitable or offensive? Report this comment
Anonymous | 21-Apr-2012 6:35 pm
The state may be required to provide training but if a genuinely conscientious person has no rights against a potentially exploitative employer that is training them - is that fair in a modern democracy? No right to leave as you cannot get any money? Good terms or bad, Ms Carse?
And also why do job centre advisers (refer to Guardian articles on jobseekers refusing apparenltly voluntary work in recent months) have to mete out corrective punishments in the form of mandatory work activity? Does the Human Rights Act not specify that the courts are there to decide on work punishments and even then with the punished person's agreement?
Unsuitable or offensive? Report this comment
Peter Jones | 15-May-2012 7:21 pm
If a person on the Work Programme is told that a placement is mandatory, they have no choice. It is not their free will. They do it or else!
Explain how this does not constitute forced labour. I bet Chris Grayling will try soon.
Unsuitable or offensive? Report this comment