Ask CPAG Online - How can you avoid a ‘high level’ JSA sanction?
Your JSA can be sanctioned if you:
- lose your job as an employee because of ‘misconduct’;
or if without ‘good reason’ you:
- voluntarily leave a job as an employee;
- refuse to apply for or accept a job offer;
- ‘neglect to avail’ yourself of a reasonable opportunity of employment’;
The sanction is the loss of your JSA for 13 weeks, 26 weeks (if there has been a previous high level sanction in the preceding 52 weeks) or 156 weeks (if there has been more than one previous sanction in the preceding 52 weeks). The rules are fully explained in Chapter 48(1) of the CPAG Handbook. Guidance on sanctions for decision makers in the Department for Work and Pensions (DWP) is given in Chapter 34 of the Decision Makers' Guide (DMG).
The following tactics could help you to avoid a ‘high level’ sanction:
1. LOSING EMPLOYMENT THROUGH MISCONDUCT
The word ‘misconduct’ is not defined in law, but it suggests an element of blameworthiness. In particular, it means ‘such misconduct as would persuade or oblige a reasonable employer to dismiss employees’ because, considering their misconduct, they are no longer fit to hold their employment. Misconduct is conduct which is connected, not necessarily directly, with your employment. Taking into account the relationship of employer and employee (and rights and duties of both), misconduct must be conduct that can fairly be described as blameworthy and wrong.
Everyone makes mistakes or is inefficient from time to time. So, for example, if you are a naturally slow worker who, despite making every effort, cannot produce the output required by your employer, you are not guilty of misconduct even if the poor performance may justify your dismissal. You are guilty of misconduct only if your actions or omissions are 'blameworthy'. This does not mean it has to be established that you did anything dishonest or deliberately did something wrong - serious carelessness or negligence may be enough.
Note that DWP decision makers should not impose a sanction for misconduct if there is evidence from a medically qualified person that, at the time of the alleged misconduct, you were suffering from a mental illness and not responsible for the actions in question. Also, if details of a zero-hours contract come to light after you start work, you will always have good reason for leaving voluntarily or due to misconduct, and a sanction should never apply.
The rules about losing a job because of misconduct are set out in Chapter 48(1) of the CPAG Handbook. Information about what constitutes 'misconduct' can be found in Chapter 48(4). There is also detailed guidance in paragraphs 34531-34636 of Chapter 34 of the DMG.
2. LEAVING A JOB VOLUNTARILY
You must show you had a 'good reason' to leave a job 'voluntarily' to avoid a sanction. This involves showing you acted reasonably and your circumstances make it proper that public funds should support you. There are no hard and fast rules as to when you have shown good reason because the circumstances can vary so much.
DWP decision makers should consider all the relevant circumstances which could include caring responsibilities, childcare expenses, or poor employment conditions. You should automatically be considered as having good reason for leaving a job you are doing under a 'zero hours contract' (see paragraph 34415 of the DMG.
'Good reason' is also relevant to whether you left a job 'voluntarily'. If your terms and conditions are changed by your employer, and you leave your job, this may not be sufficient to show that you did not leave voluntarily. Similarly, retiring from your job simply because you have reached retirement age may mean you are still treated as leaving voluntarily.
You may have had good reason for leaving employment if you had a genuine and substantial grievance about the employment (other than the level of pay) and you had tried in a proper and reasonable way to get it settled, but failed. If your employer persistently breaches health and safety law or does not pay you, then you would have good reason for leaving the paid work.
You should be given an opportunity to show that you had ‘a good reason’ for leaving a job before a sanction is imposed, so you should make detailed representations backed up by any supporting evidence (e.g. from your former employer).
The rules about leaving a job voluntarily without a good reason are covered in Chapter 48(1) and (4) of the CPAG Handbook. There is also detailed guidance in paragraphs 34426-34506 of the DMG.
3. APPLYING FOR AND ACCEPTING JOBS
When instructing you to apply for jobs, your work coach or Work Programme provider must make sure that the job is suitable for you, taking into account your wishes, personal circumstances and the local labour market. They should also ensure that any unavoidable work expenses (e.g. transport, child care and equipment) do not amount to an unreasonably high proportion of earnings. The level of pay should be suitable and not place you, or your, family at risk of hardship. Paragraph 11 of Chapter 3a of the Work Programme Provider Guidance instructs Work Programme providers to:
'Ensure you provide the claimant with an adequate opportunity to make representations as to the suitability of the employment they are required to apply for or take up before they are mandated to do so and give proper consideration to those representations. Please Note: You must also ensure that any representations are recorded and the reasons why the claimant is nonetheless required to apply or take up employment are explained'.
Jobs must pay at least the minimum wage and comply with the Working Time Regulations 1998. You cannot be required to apply for a zero hour contracts, Work Trials, or self-employment. You should be allowed up to four weeks to apply for a notified vacancy.
You should only be required to apply for vacancies via Universal Jobmatch if you have already created a profile and public CV. Note that you can be required by a Jobseeker’s Direction to create a profile and public CV on the Universal Jobmatch website but cannot be required to allow the DWP access to your account to check your activity.
If you fail to apply for or accept a job notified to you (or turn up late for, or behave inappropriately at, an interview), the DWP will write to you stating that your JSA will be sanctioned unless you can show you had a ‘good reason’ for the failure. Note that travelling time of less than 90 minutes each way cannot constitute a good reason unless it is unreasonable because of your health or caring responsibilities.1 Paragraphs 34415-17 of the DMG states that the rate of pay is not, in itself, a good reason for refusing a job (unless if is below the national minimum wage), but paragraphs 34346-62 says that work-related expenses which form an unreasonably high proportion of earnings could be.
You can find more about what counts at ‘good reason’ for failing to apply for a job at paragraph 34200 onward of Chapter 34 of the DMG. You can find out more about what a Work Programme personal adviser can require you to apply for in Chapter 3a of the Work Programme Provider Guidance.