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Chapter K3: Higher Level Sanctions

Contents
K3001:Introduction
K3006:Imposition of requirements
What is the reduction period
K3011:Claimant aged 18 or over
K3016:Claimant aged 16 or 17
K3020:Escalation of sanctions

Current sanctionable failure occurred within 14 days of a previous
K3021:failure
K3022:Failures determined out of sequence
K3024:Pre-claim failures
K3026:Reduction period for a pre-claim failure

Reduction period for a pre-claim failure where paid work is for a
K3027:limited period
K3028:Failures following a re-award of UC
K3030:Re-award of UC
K3031:Joint claimants
K3032:Higher level sanctions where there is a re-award of UC
K3033:Work-related requirements
K3035:Failures for which no reduction applies
Fails for no good reason to comply with a work placement of a
K3036: prescribed description
K3037:MWA scheme
K3038:Failure to comply in the MWA scheme
K3040:Inappropriate behaviour
K3044:Balance of time
Failure to comply with a requirement to take up or apply for
K3061: paid work
K3062:Refusal or failure
K3063:Claimants change their mind
K3064:Vacancy suspended or withdrawn
Misconduct
K3066:Introduction
K3069:What is misconduct
K3072:What constitutes misconduct
K3073:Mental illness
Whether the claimant acted or failed to act as alleged
K3074:Unfair dismissal
K3077:Employment Tribunal's finding of facts
K3081:Proof
K3083:Evidence
K3086:Giving the claimant a chance to comment
K3091:Whether the claimant acted or failed to act as alleged
K3101:Whether the claimant's conduct was misconduct
K3106:Misconduct outside employment
K3111:Instructions not obeyed
K3112:Failure to follow rules and regulations
K3116:Trade union membership and activities
K3121:Health and safety
K3126:Refusal to do work
K3132:Refusal to work overtime
K3136:Refusal on grounds of religion or conscience
K3141:Negligence and inefficient work
K3151:Driving offences and road accidents
K3156:Unauthorised absence and lateness
K3161:Looking for other work
K3162:Time off work under employment protection and trade union law
K3166:Notification of absences
K3171:Offensive behaviour
K3181:Dishonesty
K3186:Whether misconduct caused the loss of paid work or pay
Leaving paid work or losing pay voluntarily
K3201:Introduction
K3203:Meaning of voluntarily
K3211:Trial periods
K3216:4 week paid work trials through a work placement
K3221:Claimants who have no employment
K3222:Women on maternity leave
K3223:Mariners
K3224:Police
K3231:Resignation and dismissal
K3233:Relationship to misconduct
K3236:Notice cancelled or suspended
K3241:Changing the terms and conditions of employment
K3242:The national minimum wage
K3244:Absence from work
K3251:Claimants who volunteer for redundancy
K3252:Meaning of redundant
K3255:Meaning of laid off and short time
K3261:Claimants who leave employment early
Members of Her Majesty's Forces
K3271:Voluntarily ceased paid work or loses pay
K3272:Misconduct
K3276:Trade dispute stoppage

Chapter K3: Higher Level Sanctions

K3001 Introduction

A higher level sanction (1) is a reduction of UC for a sanctionable failure by a claimant who
1. ceases paid work or loses pay through misconduct (2) (see K3066) or
2. for no good reason
2.1 fails to comply with a requirement imposed by the Secretary of State
under a work preparation requirement to undertake a work placement
of a prescribed description (3) (see K3036 et seq) or
2.3 fails to comply with a requirement imposed by the Secretary of State
under a work search requirement to apply for a particular vacancy for
paid work (4) (see K3061) or
2.4 fails to comply with a work availability requirement by not taking up an
offer of paid work (5) (see K3061et seq) or
2.5 voluntarily ceases paid work or loses pay (6) (see K3201),
Note:
See ADM Chapter K1 (General principles) for the meaning of sanctionable
failure. See ADM Chapter K2 (Good reason) for guidance on good reason and ADM
Chapter J3 (Work-related requirements) for the meaning of paid work and guidance
on work-related requirements and the imposition of requirements (also see K3005).

1 WR Act 12, s 26(1); 2 s 26(2)(d); 3 s 26(2)(a); 4 s 26(2)(b); 5 s 26(2)(c); 6 s 26(2)(d)

K3002

See ADM Chapter K4 (Medium-level sanctions) for guidance on sanctions where
the claimant fails for no good reason to comply with a
1. specified work related requirement to take all reasonable action to obtain paid
work, more paid work or better paid work or
2. work availability requirement (1).

1 WR Act 12, s 17(1)(a) & 27; UC Regs, reg 103

K3003

See ADM Chapter K5 (Low level sanctions) for guidance on sanctions where the claimant
1. falls within specified work-related groups and
2. fails without good reason to comply with specified work-related requirements (1).

1 WR Act 12, s 23 & 27; UC Regs, reg 104

K3004

See ADM Chapter K6 (Lowest level sanctions) for guidance on sanctions where the claimant
1. falls within the work-focused interview requirement only group and
2. fails without good reason to take part in a WFI (1).

1 WR Act 12, s 13(2)(a), 15, 20 & 27; UC Regs, reg 105

[K3005]

K3006 Imposition of requirements

For detailed guidance as to when and how a
1. work preparation
2. work availability
or
3. work search
requirement is imposed by the Secretary of State see ADM Chapter J3 (Work
related requirements).
K3005 - K3010
What is the reduction period

K3011 Claimant aged 18 or over K3016 K3262

Where the claimant is aged 18 or over on the date of the sanctionable failure and the
sanctionable failure is not a pre-claim failure (see K3024), the reduction period is
1. 91 days where there has not been a previous higher-level sanctionable failure
in the 364 days immediately preceding the date of the current failure (1) or
2. 182 days if, in the 364 days immediately before the date of the current failure,
but not within 13 days, there was another higher-level sanctionable failure for
which a 91 day reduction period applies (2) or
3. 1095 days if, in the 364 days immediately before the date of the current
failure, but not within 13 days, there was another higher-level failure for which
a 182 day or 1095 day reduction period applies (3).
Note
1: See ADM Chapter K1 (General principles) for the meaning of sanctionable
failure and the general principles on calculating reduction periods, ADM Chapter K8
(When reduction begins and ends) for guidance on when the reduction begins where
there is more than one sanctionable failure.
Note 2: The 365 days refers to the time that has elapsed between failures and not
failure determinations or the beginning or ending dates of a reduction period. See
guidance at K3021 if failures are determined out of sequence.

1 UC Regs, reg 102(2)(a)(i); 2 reg 102(2)(a)(ii); 3 reg 102(2)(a)(iii)

K3012

This means
1. a failure must be within 365 days of the previous failure in order to escalate to
the next penalty and
2. where there are two failures within 14 days of each other a sanction will be
imposed for each failure but the duration of the second sanction will not escalate.
Note: The DM considers whether there has been another sanctionable failure in the 13 days
or 364 days preceding the date of the failure in question.

Example 1

Jono claims UC from 21.3.14 after leaving his job on 21.3.14. The DM determines
he had no good reason for leaving his job. As this is the first higher level failure a 91
day reduction of UC is applied.

Example 2

On 2.7.14 Samara fails for no good reason to comply with a requirement to
participate in the MWA scheme. This is her second higher level failure. A 91 day
sanction was imposed for the previous failure on 28.4.14. As this is the second
sanctionable failure within 365, but not within 14 days, of the previous sanctionable
failure a 182 day reduction of UC will apply.

Example 3

Simon refuses without good reason to apply for a vacancy notified to him by his
advisor. The date of the failure is 20.4.15. The previous failures occurred on 22.2.14
and 10.10.14 which resulted in sanctions of 91 days and 182 days respectively. The
sanction imposed for the current sanctionable failure will be 1095 days.

[K3013-K3015]

K3016 Claimant aged 16 or 17

Where the claimant is aged 16 or 17 on the date of the sanctionable failure, and the
failure is not a pre claim failure (see K3024), the reduction period is
1. 14
days (1) where there has not been a previous higher-level sanctionable failure
within the 364 days immediately beforethe current failure or
2. 28
days (2) if, in the 364 days immediately before the failure, there was another
higher-level sanctionable failure for which a 14 or 28 day reduction period
applies.
Note
1: The 364 days refers to the time that has elapsed between failures and not
failure determinations or the beginning or ending dates of a reduction period. See
guidance at K3021 if failures are determined out of sequence (also see ADM
K3011). The DM considers whether there has been another sanctionable failure in
the 13 days or 364 days preceding the date of the failure in question.
Note
2: Once a claimant reaches 18 any subsequent failures will be at the aged 18
or over level (see example 2).
1 UC Regs, reg 102(2)(b)(i); 2 reg 102(2)(b)(ii)

Example 1

Maisie is entitled to UC, and is aged 17. On 16.7.14 Maisie fails to apply for a job
vacancy and the DM determines it is a failure without good reason and a 14 day
reduction to her UC is imposed as this is Maisie's first higher-level sanctionable
failure.
On 8.12.14 Maisie refuses to accept a temporary vacancy offered to her and the DM
determines she can show no good reason for the failure. As this is her second
higherlevel sanctionable failure and the current sanctionable failure falls within 36
days of the previous sanctionable failure a 28 day reduction to her UC is imposed.

Example 2

Callum is entitled to UC and is aged 17. On 12.5.14 Callum fails without good reason
to comply with a requirement to participate in the MWA scheme. This is Callum's
first higher-level failure and a 14 day reduction to his UC is applied.
On 23.12.14 Callum fails to apply for a job vacancy notified to him by his advisor.
This is Callum's second higherlevel failure within 365 days of the previous failure on
12.5.14. However Callum has had his birthday since the previous sanctionable
failure and on the date of the current sanctionable failure is now 18 years old,
therefore a 91 day reduction to his UC is imposed as this is his first sanctionable
failure as an adult.

[K3017-K3019]

K3020 Escalation of sanctions K3021 K3022 K3025

All sanctions run consecutively. The length of a sanction will only escalate to the next
penalty if there has been one or more previous failures at the same level, i.e.another
higher-level sanction (1).
Note 1: A previous failure is a sanctionable failure which has been the subject of a
decision to reduce UC at the same level.
Note
2: When considering previous failures the relevant date is the date on which
the failure occurred not the date on which the decision to reduce benefit was made.
The DM considers whether there has been another sanctionable failure at the same
level in the 13 days or 364 days preceding the date of the failure in question.
1 UC Regs, reg 102(2)

Example 1

Shareena is in receipt of UC and fails without good reason to participate in her
fortnightly job search review on 28.8.13. The DM determines a lower-level sanction
should be imposed for the lower-level failure.
On 7.10.13 Shareena fails without good reason to apply for a job vacancy and the
DM decides a sanction is appropriate. The sanction is within 365 days of a previous
sanctionable failure but not within (14) days . However, the current sanctionable failure
is a higher-level sanction and the previous failure was a lower-level sanctionable
failure. Therefore the failure on 28.8.13 will not apply to escalate the sanction for the
current sanctionable failure as it is at a different level. A 91 days sanction will be
imposed for the failure on 7.10.13 (see K3O11).

Example 2

On 10.12.12 Francesca failed to participate in the MWA scheme without good
reason and a 91 day reduction was imposed. On 16.12.13 Francesca fails without
good reason to apply for a suitable job vacancy. A sanction of 91 days is
appropriate.
Although there has been a previous higher-level failure, the current sanctionable
failure does not fall within 365 days of the claimant's previous sanctionable failure
and therefore the sanction cannot escalate to the next penalty.

K3021 Current sanctionable failure occurred within 14 days of a previous failure K3011 K3016

The reduction period will not escalate to the next penalty level where the current
failure is within 14 days of the previous failure (1).
Note 1: This is to help claimants not to accumulate lengthy sanctions for failures
which occur within a short period. This depends on the dates of the failures (see K3020 Note 2).
Note 2: For more guidance on how to calculate the reduction period where the
current sanctionable failure occurred within 1 days of a previous sanctionable failure (1)
see ADM Chapter K1(General principles).
1 UC Regs, reg 101(4)

K3022 Failures determined out of sequence

The period of the reduction will only escalate if there has been a previous
sanctionable failure within 365 days of the failure in question but see K3020 if the
failure is within 14 days of a previous sanctionable failure.
Note 1: A previous sanctionable failure means one where a decision to reduce
benefit has been made. So we count the date of the previous sanctionable failure for
the purposes of escalation but only where that sanctionable failure has led to a
reduction period. The DM considers whether there has been another sanctionable
failure at the same level in the 13 days or 364 days preceding the date of the failure
in question.
Note
2: For the definition of sanctionable failure see ADM Chapter K1 (General
principles).

Example

On 31.7.14 the DM is considering a case where Keiza failed to comply with a
requirement to participate in the MWA scheme on 28.4.14 and decides a sanction is
appropriate.
On checking, the DM finds there is a previous higher-level sanction recorded for a
failure without good reason to apply for a job vacancy. This was decided on 30.6.14
for a failure that occurred on 26.6.14 and a 91 day reduction to Keiza's UC was
imposed.
The DM applies a 182 day sanction for the failure on 28.4.14 as there has been a
previous higher-level sanctionable failure within 365 days which led to a reduction of
UC of 91 days.

K3023

K3024 Pre-claim failures K3011 K3016 K3026 K3035 S5023

Where a failure occurs before the claimant makes a first claim to UC (known as a
`pre-claim failure') and the claimant
1. ceased paid work or lost pay through misconduct or
2. for no good reason
2.1 fails to take up an offer of paid work or
2.2 voluntarily ceased paid work or lost pay
that failure may not be counted for the purpose of determining the reduction period
for a subsequent sanctionable failure (1) (see K3025).

1 UC Regs, reg 102(5); WR Act 12, s 26(4)

K3025 K3024

Pre-claim failures can only be counted with previous higher level failures for
escalation purposes as long as the previous failure is
1. in the 364 days (but not 13 days) immediately before the date of the current
failure in question and
2. the previous failure is not another pre-claim failure (1) .
However, see K3020 if the previous failure is in the 13 days immediately before the
date of the current failure.
1 UC Regs, reg 102(3)

Example 1

On
29.4.14
Jamilla is sacked from her job due to misconduct. She claims UC on
29.4.14. On 19.5.14 the DM determines that Jamilla lost her job due to misconduct
and imposes a reduction of 91 days for a first higher-level failure. On 4.3.15 Jamilla
leaves a job because she doesn't like it and reclaims UC from 4.3.15. The DM
considers a sanction at the higherlevel. The second failure is within 365 days of the
previous failure but both occurred before she made a claim to UC (i.e. both are pre-
claim failures) and therefore the previous failure is not counted when determining the
reduction period for the subsequent failure. The DM imposes a 91day reduction to
Jamilla's UC for the failure on 4.3.15.

Example 2

On 5.8.14 Abdul refuses a job and the DM determines he has failed without good
reason to accept paid work and imposes a 91 day higher-level sanction. On 17.12.14
he fails to apply for another job which is vacant and this time the DM imposes a 182
day reduction for a second higher-level failure which has occurred within 365 days of
the first failure.
On 31.7.15 Abdul leaves a job because he is bored and reclaims UC from 31.7.15.
The DM determines Abdul left paid work voluntarily and without good reason and
imposes a 1095 day reduction. The third failure is a pre-claim failure but is within 365
of a previous higher-level failure which is not a pre-claim failure.

K3026 Reduction period for a pre-claim failure

Where the sanctionable failure is a pre-claim failure (see K3024) the reduction
period is reduced by the number of days between the date of the day
1. after the date of the sanctionable failure and
2. before the date of the claim to UC (1)
except where K3027 applies.
1 UC Regs, reg 102(4)(a)

Example 1

On 16.11.14 Camilla is sacked from her job due to misconduct. She claims UC on
28.11.14. On 23.12.14 the DM determines that Camillla has lost paid work due to
misconduct and imposes a higher level sanction of 91days for a first failure. The
reduction period is reduced by 11 days, i.e. the period from 17.11.14 (the date after
the failure) to 27.11.14 (the date before the date of claim to UC).

Example 2

Duncan claims UC from 26.8.14 after leaving his job on 22.8.14. The DM determines
he had no good reason for leaving his job. As this is a first higher level failure a 91
day reduction of UC is applicable. The reduction period is reduced by 3 days, i.e the
period from 23.8.14 (the date after the failure) to 25.8.14 (the date before the claim
to UC).

K3027 Reduction period for a pre-claim failure where paid work is for a limited period K3026 K3035

Where the sanctionable failure is a pre-claim failure and relates to paid work that
was due to last for a limited period, the reduction period will
1. begin with the day after the date of the sanctionable failure and
2. end with the date on which the limited period would have ended minus the
number of days beginning with the day after the date of the sanctionable
failure and the day before the date of claim to UC (1).
Note: Limited period means a specific period which is fixed in advance, for example
a short term contract. If the employment was due to end 28 days after the person left
that employment then the maximum period of reduction which could be imposed
would be for 28 days.
1 UC Regs, reg 102(4)(b)

Example

Emily is a dancer and has a 6 month contract with a cruise company from 1.9.14 to
28.2.15. She voluntarily leaves her contract on 4.1.15 and claims UC on 12.1.15.
The DM determines that Emily left her employment voluntarily and for no good
reason. This is a first higher level sanctionable failure and a 91 day sanction would
normally apply. Emily's contract was due to finish on 28.2.15. The reduction period
actually imposed is for 48 days which is the period from failure to end of contract
minus the period between failure and claim.

K3028 Failures following a re-award of UC

A higher level sanction cannot be imposed on someone who
1. has failed to take up an offer of paid work (1) or
2. has lost their job or reduced their hours and earnings voluntarily or because of
misconduct (2)
unless they have done so before making a claim for UC.
Note:
The provisions apply to claimants in the all work-related requirement group
(for guidance on work-related requirements see ADM Chapter J3).

1 WR Act 12, s 26(4)(a); 2 s 26(4)(b)

K3029

This means imposing a higher-level sanction on claimants for `pre-claim failures'
does not apply to claimants who come back onto UC through the re-award process
(see ADM K3030 - K3031). This is because legislation (1) defines this category of
sanctionable failure as being where a claimant at any time before making a claim has
1. failed to take up an offer of paid work or
2. ceased work or lost pay without good reason voluntarily or through
misconduct.
A claimant can be automatically re-awarded UC without having to make a claim (2) and
therefore falls outside the scope of `pre-claim failures'.
Note:
For definition of `sanctionable failure' see ADM Chapter K1.
1 WR Act 12, s 26(4)(a) & (b); 2 UC C&P Regs, reg 6(1)

K3030 Re-award of UC K3029

If a former claimant would become re-entitled to UC within six months of the last day
of their previous entitlement and they
1. failed to take up an offer of paid work or
2. without good reason voluntarily or through misconduct
2.1 had their hours or wages reduced or
2.2 lost their job
then they have two options for returning to UC. They can either make a fresh claim
or they can notify the change in their circumstances and their UC can be re
awarded (1) without them having to make a claim.
1 UC, PIP, JSA &ESA (C&P) Regs, reg 6(1)

K3031 Joint claimants K3029

Regulations (1) enable an award of UC to be made in some instances to joint claimants
without the need for a claim being made.
Note:
It is less likely that a pre-claim failure would arise in these cases because
where two existing single claims merge (or a joint claim is converted to a single
claim(s)) there will be no break in entitlement, but it is possible that in certain cases
pre-claim failures may arise, e.g. if one partner did not have a subsisting UC claim
(for further guidance on UC claims see ADM Chapter A2).
1 UC, PIP, JSA & ESA (C&P) Regs, reg 9

K3032 Higher-level sanctions where there is a re-award of UC

Where a person is re-awarded UC
1. without making a claim and
2. a pre-award failure is identified
they will not fall under relevant legislation (1) and so a higher-level sanction cannot be
imposed.
1 WR Act 12, s 26(4)

K3033 Work- related requirements

With the exception of powers to impose sanctions for pre-claim failures, claimants
should not be referred for a sanction decision for failures committed when the
claimant was not in receipt of UC. This is because legislation (1) is limited to imposing
work-related requirements upon claimants (2). These powers do not stretch to
individuals who have come off benefits even if we anticipate that they may re-claim
in the future under the re-award process or otherwise.

1 WR Act 12, s 13 - 25; UC Regs, reg 95; 2 WR Act 12, s 40

K3034

Therefore we cannot impose a requirement upon an individual where there is no
subsisting claim/award for UC. There is also no power to impose a requirement
within an earlier notification that seeks to impose a binding obligation contingent
upon the fact a claimant may be re-awarded benefit in the future (for detailed
guidance on Work-related requirements in UC see ADM Chapter J3).

K3035 Failures for which no reduction applies K3251

No reduction may be made where the sanctionable failure in question
1. is a failure to
1.1 apply for a particular vacancy or
1.2 take up an offer of paid work
where the vacancy is because of a strike arising from a trade dispute (1) (see K3276)
2. occurs because the claimant ceases paid work or loses pay and the following
circumstances apply
2.1 the claimant's work search and work availability requirements are
subject to limitations imposed in respect of work available for a certain
number of hours
2.2 the claimant takes up paid work or more paid work that is for a greater
number of hours and
2.3 the claimant voluntarily ceases that paid work or more paid work or
loses pay within a trial period (2) (see K3211)
3. is that the claimant voluntarily ceases paid work or loses pay because of a
strike arising from a trade dispute (3) (see K3276)
4. is that the claimant voluntarily ceased paid work as a member of the regular or
reserve forces (see note 1) or loses pay in that capacity (4) (see K3272)
5. is a pre-claim failure (see K3024 - K3027) and the period of the reduction is
the same as or shorter than the number of days beginning with the day after
the date of the sanctionable failure and ending with the date of claim (5)
6. is that the claimant voluntarily ceases paid work because the claimant has
6.1 been dismissed because of redundancy after volunteering or agreeing
to be dismissed
6.2 ceased work on an agreed date without being dismissed in pursuance
of an agreement relating to voluntary redundancy or
6.3 been laid off or kept on short-time as provided for in relevant legislation (6)
and has complied with those requirements (7) (see K3251)
7. is that the claimant by reason of misconduct or voluntarily and for no good
reason ceases paid work or loses pay and the claimant's weekly earnings or,
in the case of a joint-claim couple, their joint earnings, have not fallen below
the level at which the Secretary of State considers work search and work
availability requirements should be imposed (8).
Note
1: Regular or reserve forces has the same meaning as in relevant legislation (9)
(see K3272).
Note
2: The circumstances in 2.1, 2.2 or 2.3 apply when a claimant has restrictions
on work search and availability and tries out work in excess of those limitations and
then ceases that work or loses pay in the trial period. For guidance on trial period
see K3211.
Note
3: See ADM Chapter J3 (Work-related requirements) for guidance on work
search, work-related requirements and paid work and ADM Chapter H3 (Earned
income: employed earners) for guidance on trade disputes.
1 UC Regs, reg 113(1)(a); 2 reg 113(1)(b); 3 reg 113(1)(c); 4 reg 113(1)(d); 5 reg 113(1)(e);
6 ER Act 1996, s 148; 7 UC Regs, reg 113(1)(f); 8 reg 113(1)(g); 9 Armed Forces Act 2006, s 374

K3036 Fails for no good reason to comply with a work placement of a prescribed description K3001

It is a failure for no good reason to comply with a requirement imposed by the
Secretary of State under a work preparation requirement to undertake a work
placement of a prescribed description that gives the DM the provision to reduce
benefit at the higher level (1).
1 WR Act 12, s 26(2)(a ); UC Regs, reg 102

K3037 MWA scheme

The Mandatory Work Activity (MWA) scheme (1) is a specified work placement
scheme for the purposes of higher-level sanctions. It is a scheme known by that
name provided in arrangement with the Secretary of State that is designed to
provide work or work-related activity for up to 30 hours per week over a period of 4
consecutive weeks with a view to assisting claimants to improve their prospects of
obtaining employment (2).
Note 1: There is no work experience element for the MWA scheme, instead there is
a work placement for community benefit and if a claimant does not comply without
good reason then a higher-level sanction should be imposed (see K3038 et seq).
Note
2: See the guidance in ADM Chapter K5 (Low level sanctions) for other
placements and employment schemes, e.g. Work Programme, sector-based work
academies, Skills Conditionality.
1 UC Regs, reg 114(2)

K3038 Failure to comply in the MWA scheme K3037

Failure to comply is not defined in legislation and therefore takes its everyday
meaning of fulfilling a specified requirement. Claimants will be expected to comply
with all requirements specified to them as part of a work preparation requirement
which makes it more likely in the opinion of the Secretary of State that the claimant
will obtain paid work, more paid work or better paid work (see Note). For MWA this
can include a failure to
1. attend and take part in the placement (see K3039) and/or
2. meet expected standards of behaviour (see K3040).
Note: For detailed guidance on the imposition of a work preparation requirement see
ADM Chapter J3 (Work-related requirements).

K3039 K3038 S5043

Failing to take part in the MWA may include, for example,
1. turning up for an interview
2. preparing an action plan
3. writing a CV
4. working as a team
5. displaying interpersonal skills
6. taking part in skills training
7. improving personal presentation
8. attending a skills assessment
9. taking part in a community based work placement.
"Non complying" is basically not fulfilling any specified requirement that a claimant is
instructed to do as part of a work preparation requirement.
Note:
It would be for the DM to consider the claimant's reasons for any particular
behaviour, act or omission when considering whether to sanction if a claimant fails to
comply with a work preparation requirement. The claimant would have to show good
reason for the failure (for detailed guidance on good reason see ADM Chapter K2
(Good reason)).

Example

Vanessa is notified of a MWA placement as a shop assistant in a charity shop. She
will be required to perform any reasonable duties of a shop assistant by way of
complying in the scheme as part of a work preparation requirement as notified to her
by the provider. These include serving customers, stocking shelves, keeping the
shop tidy and answering queries. She will also be expected to turn up on time, be
presentable and polite to customers and other staff. If she fails to do any of these
tasks or anything appropriate to her position as a shop assistant without good
reason a sanction can be considered (also see the guidance on inappropriate
behaviour at K3040).

K3040 Inappropriate behaviour K3038 K3039

Work preparation requirements are designed to help claimants
1. enhance and improve their employment prospects and
2. gain opportunities to develop skills and disciplines associated with a normal
working environment (e.g. attending on time, carrying out tasks, working as a
team and interpersonal skills)
in order to prepare them to return to or enter the labour market. Work preparation
requirements can also include `behaviours' acceptable in a place of work (see K3041).

K3041 K3040

Participation can include `behaviours' acceptable in a place of work. For example;
participants are expected to comply with the required codes of conduct, policies and
procedures expected by their work placement provider, which includes, for example,
being courteous to employees, staff and customers and treating the provider and
other employees politely, fairly and considerately.

K3042

Whilst participating in the MWA scheme if a claimant uses inappropriate behaviour
this may be perceived as `failing to participate' and a sanction may be appropriate.
Examples of conduct which could amount to a failure to participate, even if the
placement continues, may include
1. the use of bad or offensive language
2. constantly complaining about the scheme or the provider or what they are
asked to do
3. being unwilling, uncooperative or obstructive
4. a failure to dress appropriately or having an unkempt appearance
5. a general bad attitude
6. using threatening or intimidating behaviour.
This list is not exhaustive and it will be for the DM to consider all the facts and
evidence of the individual case as presented and decide on the balance of
probabilities whether the claimant's behaviour was so inappropriate that it was
considered they were no longer suitable to remain on the placement and whether
any dismissal from the scheme was on account of the claimant's own behaviour.

K3043 S5043

A claimant's acts and omissions will be judged by the DM under good reason with
reference to that claimant's personal and individual circumstances, considering what
is reasonable behaviour expected by a reasonable person in a working situation. For
detailed guidance on good reason see ADM Chapter K2.
Note: Inappropriate behaviour can be any unreasonable act or omission shown
towards the employer, other employees or customers and the DM should consider
each case on its individual merits taking all the facts and circumstances into
account.

Example

Hannah starts her MWA placement as required in a coffee shop but is sent home on
her first day because of her attitude and rude behaviour towards the other staff and
customers. She continually uses obscene language, is rude to the other staff and
customers in the coffee shop and constantly moans about having to be on the
placement and what she is asked to do. The DM can consider a sanction as
Hannah's behaviour is a failure to comply with a work preparation requirement as
specified. It is not considered acceptable behaviour and does not meet the code of
conduct of the placement provider and her behaviour justified her dismissal from the
placement. Such conduct meant the provider was not prepared to continue
Hannah's placement on the MWA scheme. The DM will consider whether Hannah
can show good reason for her actions and behaviour taking all the individual
circumstances into account. The advisor may need to consider what other actions
may be considered in Hannah's case to develop her interpersonal and social skills to
overcome her barriers to work.

K3044 Balance of time

Where a claimant is mandated to the MWA scheme and does not complete the
allotted time of 4 weeks on the placement because they
1. leave UC for a reason other than going into employment and return to benefit
within 14 days or
2. are sanctioned for a failure to participate without good reason or
3. failed to participate but the DM accepts good reason
they can be re-referred to the same placement and a further higher-level sanction
could apply if they fail to participate without a good reason for the balance of time.
Note
1: The balance of time is the remaining time on the placement rounded down
to the nearest week.
Note
2: Claimants may only be re-referred for a balance of time if they actually
started their placement but left before completing their 4 weeks.

Example 1

Vanessa is notified of a MWA placement as a shop assistant in a charity shop which
is to commence on 7.10.13 at 9am for four weeks, finishing on 2.11.13. On 18.10.13
Vanessa fails to participate with the scheme due to a domestic emergency and the
DM accepts good reason for the failure. Vanessa receives a second notification
stating she is required to attend the balance of 2 weeks from 21.10.13 to 2.11.13 on
the MWA placement.

Example 2

Marion starts her MWA work placement in a coffee shop on 3.2.14. The placement
is to run for 4 consecutive weeks to 2.3.14. On 12.2.14 Marion fails to attend her
work placement as she says her alarm failed to go off and she slept in. On 14.2.14
the DM decides Marion had no good reason for the failure and a sanction is
appropriate. There are no previous higher-level sanctionable failures recorded and a
91 day reduction is imposed.
Marion is re-referred to her placement at the coffee shop for the balance of time of 2
weeks from 17.2.14 to 2.3.14. On 2.3.14 Marion again fails to turn up to the
placement. She says she didn't think it would matter as it was the last day of her
placement and she wanted to attend her niece's birthday party on that day. The DM
decides Marion has no good reason for the failure on 2.3.14 and that a further
sanction will be appropriate. As the current failure on 2.3.14 is within 365 days, but
not within 14 days, of the previous sanctionable failure on 12.2.14, a 182 day
reduction is imposed.

[K3045-K3060]

K3061 Fails to comply with a requirement to take up or apply for paid work K3001 K3001 K3062 K3221 K3222 K3236 K3241

Legislation provides that a failure is a sanctionable failure where a claimant fails
without good reason to comply with a
1. requirement imposed by the Secretary of State under a work search
requirement to apply for a particular vacancy for paid work (1) or
2. work availability requirement by not taking up an offer of paid work (2).
Note 1: For detailed guidance on paid work and the imposition of work search and
work availability requirements see ADM Chapter J3 (Work-related requirements).
Note
2: It is for the DM to consider in every case where there is a failure whether
the claimant had good reason. For detailed guidance on good reason see ADM
Chapter K2 (Good reason).
1 WR Act 12, s 26(2)(b); 2 s 26(2)(c)

K3062 Refusal or failure

Claimants may not actually refuse or fail to apply for or accept paid work for it to be a
failure to comply. A failure to comply as per K3061 includes not taking the
appropriate steps to improve their chances of getting the job such as attending an
interview or they may behave in such a way that they lose the chance of getting the
vacancy. For example they may
1. not arrive on time for interview or go to the wrong place through their own
negligence or
2. impose unreasonable conditions, so that the employer withdraws the job offer
or
3. make statements which, although reasonable in themselves, are intended to
put the prospective employer off.
These actions amount to refusals or failures to comply. However, if any statement
under 3. was reasonable in the circumstances, and it was not made only to put the
employer off, the claimants have not refused the vacancy. Also, claimants will have
failed to accept a vacancy if they accept the job when it is offered, but then fail to
start it.

Example 1

Seelma is looking for work as a supervisor in a bank, and has been getting UC for
six months. She is offered a job as a bank clerk at an interview. She tells the person
interviewing her that she will take the job, but will only stay until she finds a job as a
supervisor. The employer decides not to give her the job. The DM decides that
Seelma has not refused the vacancy.

Example 2

Pauline is offered a job. She says that she wants three weeks holiday within a month
of starting. The employer withdraws the offer of a job. In this case her attitude is
considered unreasonable and Pauline has refused an offer of a job without good
1
reason .
1 R(U) 23/51

Example 3

Franz refuses to complete a form before he is interviewed for a vacancy. Because of
this, the employer will not interview him. Franz has failed to apply for a vacancy
without good reason (1).
1 R(U) 32/52
Note:
DMs should remember, when reading the caselaw, references to the
employment having to be suitable no longer apply.

Example 4

A Jobcentre Plus office gives Chin Lu an application form for a job in a local factory.
She completes the application form and sends it to the employer.
Chin Lu has written on the application form, in the space provided for additional
information,
"I am frequently advised by personnel managers and other simple-minded people
that "it is easier to get a job if you have one already". Why is it easier?? What do
you expect the unemployed to do about it?
There will always be long-term unemployed until you buck up your ideas!!"
The employer does not invite Chin Lu for an interview. The DM decides Chin Lu has
failed to apply for the job.

K3063 Claimants change their mind

Claimants who refuse or fail to apply for or accept a vacancy for paid work may
change their minds and apply for or accept it
1. before it has been filled and
2. before the job was due to start and
3. their application is accepted for consideration by the employer.
In such cases claimants have not refused or failed to apply for or accept the
vacancy.
Note: If claimants change their minds after a reduction period has been imposed the
DM should consider revising or superseding the original decision.

K3064 Vacancy suspended or withdrawn S5061

Where the claimant has refused a vacancy immediately and a sanction could be
applied at that point in time, i.e. the claimant can show no good reason for the
failure, a sanction can be imposed regardless of whether the vacancy is still "open".
If the claimant changed his mind and applied, i.e. the vacancy is still "open", the DM
can take account of that and decide not to sanction. If he changes his mind, but can't
apply because the vacancy has been either suspended or withdrawn, his change of
mind will not assist him and he can still be sanctioned.

Example 1

Jamhal refuses to apply for an advertised vacancy given to him at the Jobcentre and
the DM decides a sanction can be applied. Before the determination to impose a
reduction to his UC is made Jamhal changes his mind and applies for the vacancy
as the closing date for applications has not passed. No reduction is imposed.

Example 2

Jamie-Lee fails to apply for a vacancy given to her at the Jobcentre and the DM
decides a sanction can be applied. A 91 day reduction is imposed to Jamie-Lee's
UC. Jamie-Lee contacts the Jobcentre and says she has changed her mind and will
apply for the vacancy after all, however the closing date for applications has passed.
The DM decides the decision to sanction was correct and the decision is not revised,
Jamie-Lee failed for no good reason to apply for a particular vacancy for paid work.

K3065

Misconduct

K3066 Introduction K3001 K3212 K3232 K3233

Legislation provides that a failure is a sanctionable failure where a claimant by
reason of misconduct
1. ceases paid work or
2. loses pay (1).
Note 1: For failures due to misconduct the claimant will not have an opportunity to
show good reason for the failure but will be given the opportunity to provide facts and
evidence for consideration by the DM (see K3086).
Note
2: For guidance on paid work see ADM Chapter J3 (Work-related
requirements).

1 WR Act 12, s 26(2)(d)

K3067

A sanction should only be imposed where the claimant
1. acted or failed to act as alleged (see K3074) and
2. behaved in such a way that it amounted to misconduct (see K3072) and
3. lost paid work or pay through the misconduct (see K3186).

K3068

The sanction is not to punish claimants for losing a job, but to protect the NI fund
from claims which claimants bring upon themselves by their misconduct (1).
1 CU 190/50(KL); R(U) 2/77

K3069 What is misconduct

The word "misconduct" is not defined in SS legislation, but it suggests an element of
blameworthiness (1). 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 (2). Misconduct is conduct which is
connected, but not necessarily directly, with the employment. And taking into
account the
1. relationship of employer and employee and
2. rights and duties of both
misconduct must be conduct that can fairly be described as blameworthy and
3
wrong .

1 R(U) 8/57; 2 R(U) 24/55; R(U) 7/57; 3 R(U) 2/77

K3070

The claimant is guilty of misconduct only if their actions or omissions are
`blameworthy'. This does not mean that it has to be established that the claimant did
anything dishonest or deliberately did something wrong, serious carelessness or
negligence may be enough.

K3071

Everyone makes mistakes or is inefficient from time to time. So, for example, if a
claimant is a naturally slow worker who, despite making every effort, cannot produce
the output required by their employer, they are not guilty of misconduct even if the
poor performance may justify their dismissal.

K3072 What consitutes misconduct K3067

In addition to the circumstances listed as good reason in ADM Chapter K2, DMs
should take account of the following points when considering whether to impose a
sanction for misconduct
1. the claimant is guilty of misconduct only if their actions or omissions are
`blameworthy'. This does not mean that it has to be established that the
claimant did anything dishonest or deliberately did something wrong, serious
carelessness or negligence may be enough (see K3141)
2. everyone makes mistakes or is inefficient from time to time. So, for example,
if a claimant is a naturally slow worker who, despite making every effort,
cannot produce the output required by their employer, they are not guilty of
misconduct even if the poor performance may justify their dismissal (see K3101)
3.
the misconduct has to have some connection with the claimant's employment.
It does not have to take place during working hours to count as misconduct.
However, a sanction cannot be imposed if the actions or omissions took place
before their employment began (such as giving inaccurate information about
themselves when applying for the job) (see K3186 et seq)
4. some behaviour is clearly misconduct, eg, dishonesty (whether or not
connected with work) if it causes the claimant's former employer to dismiss
them because they no longer trusts them (see K3181)
5. bad timekeeping and failing to report in time that they are sick might amount
to misconduct, eg, if lateness was persistent or failed to report they were sick
on a number of occasions (see K3166)
6. a refusal to carry out a reasonable instruction by an employer is not
misconduct if the claimant had a good reason for refusing or their refusal was
due to a genuine misunderstanding (see K3111)
7. breaking rules covering personal conduct might be misconduct, depending on
the seriousness of the breach. A breach of a trivial rule might not be misconduct
8. a refusal to work overtime is misconduct if the claimant was under a duty to
work overtime when required and the request to do it was reasonable (see K3132).
This list is not exhaustive. See guidance at K3101 et seq for other considerations
with regard to misconduct.

K3073 Mental illness

The DM should not impose a sanction for misconduct if there is evidence from
someone who is medically qualified that at the time of the alleged misconduct the
claimant was
1. suffering from a mental illness and
2. not responsible for the actions in question.
Note:
See the guidance in ADM Chapter K2 (Good reason) if 1. or 2. apply.
Whether the claimant acted or failed to act as alleged

K3074 Unfair dismissal K3067

Employment protection legislation (1) protects employees against and defines unfair
dismissal (2). Sometimes a case will arise where the DM is deciding on a sanction for
misconduct, and the claimant has also made a complaint of unfair dismissal to an
Employment Tribunal. These are separate questions, decided on different criteria.
The decision making authorities and Employment Tribunals are entirely independent
of each other. Decisions by one are not binding on the other.

1 ER Act 96, s 111(1); 2 s 98 & 100

K3075

The main difference between unfair dismissal and misconduct is that in
1. unfair dismissal, the emphasis is on the conduct of the employer
2. misconduct, the main emphasis is on the conduct of the claimant.
But the employer's behaviour will be relevant to the question of whether the claimant
lost employment through misconduct (1).
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period (see ADM Chapter K8 for general
guidance on the length and periods of reductions).

1 R(U) 2/74

K3076

There will be cases where a claimant succeeds before an Employment Tribunal on
the unfair dismissal question, but the DM decides a sanction is appropriate for
misconduct, and vice versa.

K3077 Employment Tribunal's finding of facts

An Employment Tribunal's finding of facts is convincing evidence that can be taken
into account by the decision making authorities, although the issues may be
different. It is more likely that the facts will be fully investigated by an Employment
Tribunal than by the decision making authorities because
1. the employers are party to the case before the Employment Tribunal and
2. Employment Tribunals can compel the attendance of witnesses.
But the decision making authorities are not bound to decide the facts in the same
way as an Employment Tribunal (1).
1 R(U) 2/74

[K3078-K3080]

K3081 Proof

The person who alleges the claimant has committed misconduct must prove it (1). The
DM determines what is misconduct (2).

1 R(U) 12/56; R(U) 2/60; 2 R(U) 10/54

K3082

Usually the DM decides questions of fact on the balance of probabilities. But in
misconduct cases the probability should be high because it may bring disgrace on
the claimant (1). Before a sanction is imposed the DM should be substantially satisfied
that the allegations which are made are well founded.
1 R(U) 2/60; R(U) 7/61

K3083 Evidence

In misconduct cases the DM will usually have
1. statements by the employer describing the claimant's alleged acts or omissions
2. statements by the claimant replying to the employer's allegations.

K3084 K3085

It may also be useful to have
1. statements by witnesses to the alleged acts or omissions
2. a written statement from the employer, giving reasons for the dismissal.

K3085

Claimants can ask their employer for a statement as in K3084 2., and should receive
it within 14 days, if they have worked for the employer for at least one year and
1. the employer has given them notice of the termination of the contract of
employment or
2. the employer has terminated the contract of employment without notice or
3. they are employed under a fixed term contract and the contract expires
without being renewed (1).
1 ER Act 96, s 92

K3086 Giving the claimant a chance to comment K3066

Before imposing a sanction for misconduct, the DM should be satisfied that
claimants have been given an adequate chance to comment on all the statements
made against them.

K3087

If the employer's statements are not complete, the DM can still arrange for claimants
to have a chance to comment. But if
1. it is clear that the employer will not or cannot provide any further information
and
2. decision making is not waiting for other legal action to be completed, for
example a court case or Employment Tribunal hearing and
3. the evidence is insufficient for a sanction to be imposed
claimants should not be approached again in the hope that they may provide further
evidence which would justify a sanction for misconduct.

K3088

If fresh allegations are made at a FtT hearing in the claimant's absence, the DM
should normally request an adjournment to allow the claimant to attend or answer
the allegations in writing.

[K3089-K3090]

Whether the claimant acted or failed to act as alleged
Claimant

K3091 prosecuted

If claimants are prosecuted for an offence which would be misconduct if proved, a
DM can decide that they have committed misconduct before they have been found
guilty (1). A sanction can be imposed before the case has been heard in court.
1 R(U) 10/54

K3092 Claimant acquitted

A DM should not decide that a claimant did not lose employment through
misconduct just because the claimant was acquitted of an offence. The evidence
that was before the court may be enough to establish misconduct, or there may be
other acts or omissions which were not dealt with by the court (1).
1 R(U) 8/57

K3093 Reports of court or employer's hearings

Where claimants have been convicted of offences in England and Wales (1) or
Scotland (2), the DM should accept that they have committed these offences, unless
the claimants can prove the contrary. So a conviction should be treated as strong
evidence that a person did commit the offence, though it is not conclusive. The
decision making authorities must still decide whether
1. that offence is misconduct and
2. the misconduct caused the claimant's loss of employment.

1 Civil Evidence Act 68, s 11; 2 Law Reform (Misc Prov) (Scotland) Act 1968, s 10

K3094

A statement from the employer and claimant about the conviction may be sufficient
evidence. But if there is disagreement about the
1. offence for which the claimant was convicted or
2. nature of the conviction
a certificate giving the date and precise nature of the offence should be obtained
from the Clerk to the Justices (1). This may become increasingly difficult in the light of
the Data Protection Act.

1 R(U) 24/64

K3095

A finding by a Chief Constable, after formal disciplinary proceedings, that a police
officer committed certain acts is strong evidence that the officer committed those
acts, though it is not conclusive (1).

1 R(U) 10/63

K3096

Findings of fact by an administrative body, for example a hospital management
committee, are not evidence (1). Findings of fact by an ad hoc board or committee of
enquiry appointed by the employer are relevant to the question of misconduct, but by
themselves may be insufficient. There should be other evidence before a sanction
can be imposed.
1 R(U) 7/61

K3097 Hearsay and eye-witness evidence

Hearsay evidence is acceptable, but its value must be very carefully considered (1).
The DM should ensure that, where possible, the most direct evidence, generally of
eye-witnesses, is obtained. The allegations against the claimant can then be
properly tested. Direct evidence is particularly important where the claimant denies
the facts which are alleged to amount to misconduct (2). The surrounding
circumstances may, however, be just as convincing as eye witness evidence.

1 R(U) 12/56; 2 R(U) 2/60; R(U) 7/61

K3098

The DM should decide the case on the available evidence where the allegations
1. are disputed by the claimant, and
2. they are based on information of which the person replying to enquiries for the
employer does not have personal knowledge.
A vague or general allegation is not sufficient to establish misconduct by itself. But
sometimes, when put together with the claimant's own statement, it may establish
misconduct.

[K3099-K3100]

K3101 Whether the claimant's conduct was misconduct K3072 K3072

Claimants may have behaved or performed their job in such a way that would lead to
dismissal by a reasonable employer - but this may not be misconduct.

Example 1

Rachael is often clumsy and inefficient at work. The employer, after investigating
why, comes to the conclusion that she is naturally clumsy, and is doing the best she
can. He dismisses Rachael. Rachael's clumsiness and inefficiency is not
misconduct.

Example 2

Anwar is absent for a total of 27 weeks in a year. All the periods of absence are due
to sickness or accidents and are covered by medical certificates. The employer's
rules about notifying absences are all obeyed. The employer dismisses Anwar.
Anwar's absences are not misconduct.

K3102

A deliberate act or omission by a claimant which could have been avoided can be
misconduct. For example, where claimants are late for work, the test is whether the
lateness was preventable, or whether there was a failure on the part of the claimant
to take care to attend at the proper time. Lateness which is outside the claimant's
control does not amount to misconduct.

K3103

The decision making authorities decide whether the claimant's actions are
misconduct. It does not matter that the employer has not described the claimant's
actions as misconduct.

Example

An employer ends Sheila's employment by contractual notice. In answer to an
enquiry from the DM, the employer says that she dismissed Sheila because she had
not been maintaining a proper standard of work. After further enquiries have been
made, it becomes clear that Sheila had been particularly careless. Sheila has lost
her employment through misconduct.

[K3104-K3105]

K3106 Misconduct outside employment

Misconduct which happened outside working hours and was not in the course of the
claimant's employment can be misconduct within the meaning of the legislation (1). It
may cover both criminal and non criminal acts. But it cannot include conduct which
happened before the employment started (2).

1 R(U) 7/57; R(U) 20/59; 2 R(U) 26/56; R(U) 1/58

K3107

The claimants' behaviour must have affected, either directly or indirectly, their
suitability for the employment before it can be misconduct, even if their behaviour
would amount to misconduct in a social or moral sense (1). Sexual offences committed
outside the employment are likely to fall into this category, and should not generally
be treated as misconduct. But sometimes, where claimants' employment brought
them into close contact with members of the public, their conduct could amount to
misconduct and a sanction would be appropriate. Employees in certain professions,
for example teachers, government and LA employees and social workers, know they
are expected to maintain a high moral standard and anyone dismissed for such
offences would be particularly likely to be subject to a sanction (2).
1 R(U) 24/55; 2 R(U) 1/71

[K3108-K3110]

K3111 Instructions not obeyed K3072

If claimants wilfully disobeyed a reasonable order by an employer or other superior,
this will usually be misconduct. But it is not misconduct if claimants
1. had compelling reasons for the refusal or
2. acted or failed to act on a genuine misunderstanding or
3. reasonably, but mistakenly, believed they were entitled to refuse.

Example

An employer orders Abdul, a van driver, not to drive after he has been involved in an
accident. The next day Abdul finds his van waiting, loaded as usual, and he takes it
out. He is dismissed for disobeying the order. He says that he understood he was
being taken off driving, but did not understand that this was to happen at once. Abdul
has not wilfully disobeyed the order, but acted on a genuine misunderstanding. This
is not misconduct (1).
1 R(U) 14/56

K3112 Failure to follow rules and regulations

In many employments there are rules or laws about the work and the way it is done
for example, safety rules and licensing laws. Breaking such a rule is misconduct,
unless it is very trivial. The fact that the rule is often broken does not excuse the
breaking of it, or mean that it is not misconduct.

Example

Christos, the manager of a pub, is sacked because he broke the licensing laws. It is
accepted that he did not know he was breaking the law, and he has done the same
thing on previous occasions without the police objecting. This is misconduct (1),
however all the facts should be reflected in the DM's decision on whether to impose
a sanction taking into consideration all the individual circumstances of the case.
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period. The DM should take account of all
the individual circumstances when deciding if a sanction is appropriate having
particular regard to any mental health factors. For detailed guidance on Good reason
see ADM Chapter K2.

1 R(U) 10/54

K3113

In some employments there are rules covering personal conduct. Breaking such a
rule may be misconduct, depending on the seriousness of the offence. It is no
excuse that the rule is often broken.

Example

Omar, a postman is sacked for breaking a PO rule forbidding certain types of postal
betting. This is misconduct (1).
1 R(U) 24/56

[K3114-K3115]

K3116 Trade union membership and activities

Under employment and trade union law all trade union officials are entitled to a
reasonable amount of time off work with pay to
1. carry out their industrial relations duties or
2. undergo union-approved training in industrial relations (1).
Trade union
members are entitled to a reasonable amount of unpaid time off work
to take part in trade union activities (excluding industrial action)2.

1 TULR(C) Act 92, s 168 & 169; 2 s 170

K3117

All employees have the right not to have any action taken against them by their
employer to
1. stop or deter them from being or trying to become a member of an
independent trade union, or punish them for doing so or
2. stop or deter them from taking part in the activities of an independent trade
union at any appropriate time, or punish them for doing so or
3. force them to become members of any trade union, or of a particular trade
union, or one of a number of particular trade unions (1).

1 TULR(C) Act 92, s 146(1)

K3118

The dismissal of any employee is regarded as unfair if the reason or main reason for
it was that the employee
1. was, or intended to become, a member of an independent trade union or
2. had taken part, or intended to take part, in the activities of an independent
trade union at an appropriate time or
3. was not a member of
3.1 any trade union or
3.2 one, or a number of, particular trade unions or
4. had refused, or intended to refuse, to become or remain a member of
4.1 any trade union or
4.2 one, or a number of, particular trade unions (1).

1 TULR(C) Act 92, s 152(1)

K3119

If claimants' terms and conditions of employment were changed by a closed shop
agreement and they were dismissed because they refused to join a union, a sanction
is not appropriate (1). Dismissal for refusing to join a union is now in all circumstances
unfair (2).
1 R(U) 2/77; 2 TULR(C) Act 92, s 152(1)(c)

K3120

K3121 Health and safety

Under employment and trade union law all employees have the right not to be
dismissed (1), selected for redundancy or subjected to any disadvantage (2) for
1. carrying out or planning to carry out any health and safety activities for which
they are appointed by their employer or
2. carrying out or planning to carry out any of their tasks as official or employer
acknowledged health and safety representatives or committee members or
3. bringing to their employer's attention
3.1 by reasonable means and
3.2 in the absence of a representative or committee who could do so on
their behalf a reasonable health and safety concern or
4. leaving or planning to leave, or refusing to return to
4.1 the workplace
or
4.2 any dangerous part of it
because they reasonably believed there was a serious and imminent danger which
they could not reasonably be expected to avert or
5. taking, or planning to take, steps which were appropriate to protect
themselves or others from danger which was reasonably believed to be
serious and imminent. When deciding what was appropriate, all the
circumstances should be taken into account, including
5.1 their knowledge and
5.2 the facilities and
5.3 the advice
available at the time.
1 TURER Act 93, s 57A; 2 s 22A

[K3122-K3125]

K3126 Refusal to do work

Subject to K3127, if a claimant refused to do work that should be done under the
terms of the contract of employment, this is misconduct. But the work must be
1. appropriate to the grade or
2. work which there is an express or implied obligation to do (for example
alternative work under a guarantee agreement) or
3. work which may reasonably be required in an emergency.

K3127 K3126

Sometimes the exact scope of a claimant's duties was not defined in the contract of
employment. There may have been disagreement between a claimant and the
employer about the extent of the duties. In this situation the DM should look at the
work they had previously done. If they had done particular work for a long period
without complaint, that is strong evidence that it has come to be recognized as part
of the duties.

K3128

If a claimant
1. should have done certain work and
2. had a reason for not doing so that was so compelling as to leave no choice in
the matter (for example if there is medical evidence that the work would have
been harmful to health)
the refusal is not misconduct.

K3129

If a claimant refused to perform work which was not part of the employment, it is not
misconduct.

K3130

Some trades require apprentices or trainees to do some work outside their trade. In
such a case it is misconduct if they refuse. But if it interferes with their training, their
refusal is not misconduct.

K3131

If claimants refused, because of a TD, to do work which they should have done, their
refusal is misconduct. The case against them is even stronger if there is a
recognized procedure for settling disputes and they chose to ignore it. The claimants
may also not be entitled to UC because they are involved in a TD.

Example

Stan, a crane driver who is a shop steward, refuses to carry out a proper order
because of an argument about pay, so he is sacked. There is a detailed negotiating
procedure for settling disputes but he ignores this. Stan has lost his employment
through his misconduct (1).
1 R(U) 41/53

K3132 Refusal to work overtime K3072 K3163

If a claimant
1. had an express or implied duty under the contract of employment to work
overtime when required and
2. refused a reasonable request to do so
the refusal will normally be misconduct (1) but the claimant should have been given
adequate notice if possible. The amount of overtime required and the time when it
was to be done should be reasonable for the employment. If the claimant had a
reason for refusing the request, for example domestic difficulties, this should be
taken into account when deciding whether to sanction or if it would have caused the
claimant undue mental stress (see ADM Chapter K2 for detailed guidance on mental
health issues and good reason)
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period see ADM Chapter K8 for general
guidance on the length and periods of reductions. The DM should take account of all
the individual circumstances when deciding if a sanction is appropriate having
particular regard to any mental health factors.

1 R(U) 35/58

K3133

If a claimant was dissatisfied with the rate of pay for overtime work, the claimant
should have worked as instructed and pursued the matter in the proper way (for
example through the trade union). Refusal to work overtime for this reason when
there is an obligation to do so is misconduct.

K3134

Refusal to work overtime is not misconduct if
1. the claimant was not under an obligation to work overtime or
2. the claimant genuinely believed that there was no obligation to do so or
3. the employer tried to introduce the requirement to work overtime into the
terms and conditions of the employment, or to increase the amount already
provided for in the contract or
4. although obliged to work overtime, the reasons for refusing were so
compelling as to leave the claimant with no choice but to refuse.

[K3135]

K3136 Refusal on grounds of religion or conscience

An employer sometimes tries to impose terms or conditions of employment which
would have restricted a claimant's personal freedom or conflicted with a claimant's
genuinely held beliefs. If a claimant refused to comply with such conditions, this will
not be misconduct. The principles explained in ADM Chapter K2 (Good reason)
should be followed. If the claimant would have had good reason for refusing the
employment, the refusal to comply with such conditions is not misconduct.

[K3137-K3140]

K3141 Negligence and inefficient work K3072

Whether negligence or carelessness is misconduct is a matter of degree. If it was
deliberate it is misconduct. Otherwise it depends on the
1. responsibility, care and skill expected in the job and
2. seriousness of the act or omission and
3. extent of the claimant's blame.
If claimants were doing their best, then inefficiency is not misconduct, even though it
may lead to their dismissal.

K3142

It is for the DM to establish that the claimant was so much to blame for the acts
complained of that they are misconduct. If a claimant held a position of responsibility
which called for a high standard of care or skill, a single incident, if proved, may
amount to misconduct.
The facts in the following examples are not exactly the same as the caselaw
quoted.

Example 1

Steven, a bus driver, is sacked because the bus hit another bus, causing slight
damage to both vehicles. The collision happened on a dark road. Steven had a clean
driving record for 21 years. As this is an isolated error of judgement, it is not
misconduct (1).

Example 2

Sam, a fitter, is told to check some bearings in a compressor. He says that he has
completed the job. But, when the compressor is used, it is found that part of a
bearing has not been replaced and is lying loose in the crankcase. He is therefore
sacked. This is gross negligence on his part, and he has lost his employment
through his misconduct (2).

Example 3

See La Wang, the manager of a pharmacy, is sacked after several cash shortages
are discovered. She is charged with embezzlement and acquitted. As she has been
negligent in carrying out responsible duties, she has lost her employment through
her misconduct (3).

Example 4

Andrea, an insurance agent, returns her books to her employers, explaining that
about three months before she lost 400 belonging to the company. An employee
who has charge of her employer's money is under a duty to take care to safeguard it.
Andrea can not explain why she was carrying such a large amount of money, or how
she came to lose it. Her carelessness on this one instance is misconduct (4).
1 R(U) 10/52; 2 R(U) 35/53; 3 R(U) 8/57; 4 R(U) 17/64

K3143 Carelessness or negligence

A certain amount of carelessness or negligence may be acceptable in doing less
responsible tasks. Provided it is not deliberate, such an act or omission does not
amount to misconduct even though the employee concerned lost employment as a
result. Similarly, an isolated error of judgement which had no serious consequences
may not be misconduct.

Example

Stuart, a fire tender, has to tend and keep alight a number of fires. He is sacked
following a report that he has allowed the fires to go out one night. But this is not
proved. Stuart admits that he let one fire go out, but tried to relight it at once. This is
not misconduct. One fire might go out even if the fire tender is reasonably careful.
And the fact that he took steps to rekindle it did not suggest a serious neglect of
duty (1).
1 R(U) 2/60

K3144 Inefficiency

Inefficiency alone is not misconduct when it is due only to the claimant's natural lack
of skill or ability.

Example

Malcolm, a thread tapper, is sacked because although the quality of his work is
satisfactory, he is unable to produce the quantity of work wanted. This is not
misconduct (1).
1 R(U) 34/52

[K3145-K3150]

K3151 Driving offences and road accidents K3153

If claimants committed road traffic offences which had a direct effect on their ability
to do their jobs, then this is misconduct. This will be the case, even where the
offence was committed outside the employment. But if the offence was an isolated
and minor act of negligence or was trivial or merely technical, it will not be
misconduct. An offence should not be regarded as minor, trivial or technical if, on
conviction, claimants
1. have their licences suspended or
2. are disqualified from holding a licence.
Conviction in such cases is evidence of misconduct. A certificate giving the date and
precise nature of the offence should be obtained if there is any disagreement about
the nature of the offence.
The facts in the following examples are not exactly the same as the caselaw
quoted.

Example 1

Lesley, a lorry driver, is convicted of being in charge of a car while under the
influence of drink and her licence is withdrawn. She is sacked. The offence took
place in her own time and in her private car but since her employment is dependent
on her holding a driving licence, Lesley has lost her employment through her
misconduct (1).

Example 2

Edmund, a bus driver, leaves his employment when he is disqualified from holding a
driving licence for 6 months because he is convicted of driving without insurance.
The conviction is evidence that he has committed the offence and, since his
employment depends on his holding a driving licence, it is a strong indication of
misconduct (2).

1 R(U) 7/57; 2 R(U) 24/64

K3152 K3153

Even if claimants were not prosecuted under road traffic legislation, they may have
been involved in incidents which reflected on their driving ability and resulted in loss
of employment. Whether their acts or omissions amount to misconduct depends on
all the circumstances of the case.

Example

Jose, an experienced driver, is sacked after his van hits a low railway bridge. He
wrongly assumed that an oncoming bus had passed under the bridge and that there
was therefore enough headroom for his vehicle. In fact the bus had come from a
concealed side road. There was a warning sign on the bridge, which he saw too late
to stop. Jose has been negligent but the fact that
1. there was no advance warning sign of the bridge ahead and
2. no sign to show the side road
are taken into account when deciding whether to impose a sanction for losing his job
through misconduct (1).
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period (see ADM Chapter K8 for general
guidance on the length and periods of reductions). The DM should take account of
all the individual circumstances when deciding if a sanction is appropriate having
particular regard to any mental health factors (see ADM Chapter K2 for detailed
guidance on Good reason).

1 R(U) 13/53

K3153

It was not necessary for a claimant to have been employed as a driver or for the
contract of employment specifically to have provided for the claimant to use a
company vehicle for K3151 and K3152 to apply. If a claimant
1. had used a vehicle and
2. needed to be able to drive to do the job properly and efficiently and
3. was disqualified from holding a driving licence
the claimant has lost the job through misconduct.

K3154

But where the offence did not have a direct effect on claimants' abilities to carry out
their duties, this will not be misconduct. For example, a claimant who used a car to
get to work because there was no public transport might be disqualified for holding a
driving licence. It is not misconduct if the employer would have continued to employ
them if they could have got to work without a car.

K3155

K3156 Unauthorized absence and lateness

Repeated or lengthy absence from work without permission or justification is usually
misconduct. But one short absence may also be misconduct. It is no excuse that
such absence was common practice or that the claimant had not been warned.
Absence includes not only whole days of non-attendance but also late arrival, early
departure and short periods of absence during working hours.
The facts in the following examples are not exactly the same as the caselaw
quoted.

Example 1

Bruce, an electrician, is sacked because he is often absent from work without
permission. He says that, due to shortage of materials, he often has no work to do
and can only earn the basic rate. He could spend his time better elsewhere. Even if
this is true, it does not justify being absent without leave. Bruce has lost his
employment through misconduct (1).

Example 2

Jennifer is sacked because she is absent from work for a week without permission
in order to attend a convention. She applied for leave but was refused. Jennifer has
lost her employment through misconduct (2).

Example 3

Sue does not go into work on a Saturday after she has been refused leave of
absence because other people were on holiday. When told off by her employer she
gives two weeks notice, but she is then told to leave at once. If referred to the DM a
sanction for leaving voluntarily or misconduct can be imposed (3).

Example 4

Chris is sacked because he often doesn't turn up for work, or turns up late without
permission. He makes up the lost time by working late and says that this is the
recognized practice. Chris has lost his employment through his misconduct (4).

Example 5

Nineteen employees leave their jobs as a protest because their foreman has
withheld a tax rebate due to a fellow worker. As a result the employer closes the site
for several weeks. There has not been a TD. The claimants have lost their
employment through their misconduct. Instead of walking off the site they should
have referred their grievance to the Trade Union. However, the foreman's action,
which provoked the employees, is taken into account when deciding whether to
sanction (5).

Example 6

Adam is suspended from work by the employer for a month because of unauthorized
absence from work. Adam's conduct amounts to misconduct, but the DM should
take account of all the circumstances of the case when deciding whether to
sanction (6), for example the DM may wish to investigate Adam's reasons for the
unauthorised absence and take account of any mitigating circumstances such as
domestic emergencies, mental health issues etc.

1 R(U) 22/52; 2 R(U)8/53; 3 R(U)2/54; 4 R(U)1/57; 5 R(U)26/59; 6 R(U)10/71

K3157

Where a claimant was arrested, the absence from work is not misconduct. But the
question arises whether the offence causing the arrest is.

[K3158-K3160]

K3161 Looking for other work

Absence from work without permission to look for other employment, or to be
interviewed for another job, is misconduct but if the employer was unreasonable
when dealing with requests for leave for such purposes, this should be taken into
account when considering all the facts of the case. The DM should consider whether
1. the claimant had a compelling reason for wanting a change of employment
2. it was necessary to have time off, and when and for how long
3. the claimant had grounds for thinking the employer would be unreasonable.

Example

Anili, a labourer, is sacked, after a previous warning, because of repeated
unauthorized absences from work. The employment is harmful to his health, and he
has been absent because he is looking for more suitable employment but Anil did
not explain this, or ask permission to have time off. This is misconduct (1) but the
overall circumstances should be taken into account when deciding whether to
sanction taking particular account of Anili's mental and physical health and having
regard to the guidance in ADM Chapter K2 (Good reason). The DM may want to
consider obtaining further evidence regarding Anili's health.
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period (see ADM Chapter K8 for general
guidance on the length and periods of reductions). The DM should take account of
all the individual circumstances when deciding if a sanction is appropriate having
particular regard to any mental health factors (see ADM Chapter K2 for detailed
guidance on good reason).
1 R(U) 8/61

K3162 Time off work under employment protection and trade union law

Under employment protection and trade union law certain employees are entitled to
a reasonable amount of time off work for various reasons. If the employer refuses to
allow them to take time off, employees may complain to an Employment Tribunal. If
the Employment Tribunal finds the complaint well founded they may, in certain
circumstances, award claimants compensation. The following types of employees
fall within the provisions
1. trade union officials and members (1)
2. people undertaking public duties as
2.1
justices of the peace
2.2
LA members
2.3
police authority members
2.4
Broads Authority members
2.5
National Park Authority members
2.6
members of any statutory tribunal
2.7 members of boards of prison visitors (England and Wales) or prison
visiting committees (Scotland)
2.8 members of National Health Service Trusts or Regional Health
Authorities, Area Health Authorities, District Health Authorities, Family
Health Services Authorities (England and Wales) or Health Boards
(Scotland)
2.9 school or college governors
2.10 members of the Environmental Agency or the Scottish Environmental
Protection Agency (2).
Employees in
1. and 2. are all entitled to a reasonable amount of time off during
working hours to perform their duties.
3. employees under notice of redundancy are entitled to reasonable time off to
look for new employment or make arrangements for training for future
employment (3)
4. pregnant employees have the right not to be unreasonably refused time off
during working hours for ante natal care appointments (4)
5. occupational pension scheme trustees are entitled to reasonable time off to
perform their duties and do training relevant to those duties (5)
6. employee representatives or election candidates to be employee
representatives for redundancies for TUPE legislation (6) are entitled to
reasonable time off to perform their functions (7).
1 TULR(C) Act 92, s 168-170; 2 ER Act 96, s 50 & 51; 3 s 52; 4 s 55; 5 s 58;

6 TULR(C) Act 92, Part IV, Chap II; TUPE Regs, reg 10 & 11; 7 ER Act 96, s 61

K3163

If claimants who fall within K3132 were refused time off, or as much time off as they
wanted, they should have complained to an Employment Tribunal. If they took an
unreasonable amount of time off against their employer's wishes, and were
dismissed for unauthorized absence, their dismissal will usually be due to
misconduct.

[K3164-K3165]

K3166 Notification of absences K3072

Absence from work which was
1. unavoidable, for example because of illness, or
2. justified by some reasonable excuse, such as domestic difficulties,
is not in itself misconduct. But a claimant must have complied with the employer's
rules about notification of absences. If there were no such rules, claimants should
have taken all reasonable steps to notify the employer promptly (beforehand if
practicable) of the reason for the absence. They should also have kept employers
informed if the absences were long ones. Failure to do so is misconduct.

Example 1

Gary, a welder, is absent from work for three weeks and for some odd days because
either he, or his wife (Mary), is ill. He says that his wife has written to his employer
once during the three weeks, but the employer says that he has not received the
letter. Gary has lost his employment through his misconduct. Even if his statement is
true, one letter during an absence of three weeks is not sufficient (1).

Example 2

Lionel, a painter, does not return to work after a holiday because he is sick, but he
does not inform his employer. Lionel has lost his employment through his
misconduct. On a previous occasion he delayed giving a reason until after he
returned to work, and the employer had accepted his explanation (2).

1 R(U) 23/58; 2 R(U) 11/59

K3167

If the claimants' failure to notify was beyond their control, for example they were
living alone and had no way of contacting the employer (for example they were in an
accident, unconscious or seriously ill), they have acted reasonably and their failure is
not misconduct.

[K3168-K3170]

K3171 Offensive behaviour

Insolence, quarrelling, scuffling or fighting and other forms of offensive behaviour
are misconduct. But they will not be misconduct if the claimants were suffering from
mental illness (for example nervous and depressive attacks) which meant that they
were not fully responsible for their actions. If there was substantial provocation this
should be taken into account when deciding whether it was misconduct.

K3172

The use of bad language may also be misconduct, depending on
1. the place
and
2. the people present.
The use of bad language in conversation with others who are using it, and if it cannot
be overheard, is not misconduct. But its use in circumstances when it is known, or
might be expected, to give offence to others is misconduct. An apology does not
excuse such conduct, nor is it necessarily an admission of guilt. People sometimes
apologize even though they consider themselves unfairly accused.

Example 1

Peter, a clerk, often uses obscene language and makes indecent remarks about
women employees. His colleagues complain and he is sacked. Peter has lost his
employment through his misconduct (1).

Example 2

Jon, a fitter in an aircraft company is sent to work on a Royal Canadian Air Force
base and is provided with quarters. He is drunk in these quarters in his own time.
The Royal Canadian Air Force complains to his employer and he is sacked. Jon has
lost his employment through his misconduct (2).

1 R(U) 12/56; 2 R(U) 14/57

K3173

If claimants complained in reasonable terms about their conditions of employment,
this is not misconduct. But if, because of their discontent, they
1. did their work badly or
2. refused to work
it may be misconduct. A criminal charge made against a superior is misconduct if it
was known to be false or was made recklessly (1).
1 R(U) 24/55

Example

Christopher Jessop brings a charge against his supervisor for assault while on his
way to work, but the case is dismissed. There is no allegation of any other
misconduct against the claimant. He is dismissed in the interests of discipline.
Christopher has not lost his employment through misconduct because there is no
evidence that he knew the charge was false or made it recklessly.

K3174

Sexual misbehaviour is not necessarily misconduct, but it may be where it affects
the claimant's suitability for the employment concerned, for example working with
children or vulnerable groups (1).

1 R(U) 1/71

K3175

Intimidating fellow employees to stop them working is misconduct. A claimant may
not be entitled to UC where the intimidation is connected with a stoppage of work
due to a TD.

[K3176-K3180]

K3181 Dishonesty K3072

Dishonesty in the course of employment is misconduct. Dishonesty outside
employment is also misconduct if it means that the claimant was not a fit person to
hold the employment.
The facts in the following examples are not exactly the same as the caselaw
quoted.

Example 1

Mariam, a painter, steals an almost empty tin of paint from her employer. She is
convicted and dismissed. Mariam has lost her employment though her misconduct.
But the paint was only worth about 10p, and the claimant thought that it was
worthless and that there was no objection to her taking it. The DM should give full
consideration of all the facts of the individual case when considering whether to
impose a sanction (1).
Kevin ,a warehouseman, receives tobacco stolen from his employer. He is convicted
and dismissed. Kevin has lost his employment though his misconduct (2).

Example 3

Barbara, a factory worker, steals some cigarettes from a fellow worker at a club
dance and is sacked. Barbara has lost her employment through her misconduct (3).

Example 4

Rose, an apprentice draughtsman, is dismissed after she is convicted for breaking
into and stealing from premises which are not connected with her employment. Rose
has lost her employment through her misconduct (4).
Note: Under UC legislation there are no sanctions of discretionary length.
Reductions on benefit will be for a fixed period (see ADM Chapter K8 for general
guidance on the length and periods of reductions). The DM should take account of
all the individual circumstances when deciding if a sanction is appropriate having
particular regard to any mental health factors (see ADM Chapter K2 for detailed
guidance on good reason).

1 CU 190/50(KL); 2 R(U) 27/52; 3 R(U) 10/53; 4 R(U) 20/59

K3182

People who have been sacked from positions of trust or public prominence because
of personal financial difficulties have not lost their employment through misconduct
unless they have acted dishonestly or abused their positions.

[K3183-K3185]

K3186 Whether misconduct caused the loss of paid work or pay K3067 K3072

For a sanction to be imposed it must be proved that the claimant lost pay or paid
work because of misconduct. For guidance on paid work see ADM Chapter J3
(Work-related requirements).

K3187

A sanction cannot be imposed if the acts or omissions took place before the paid
work began. Claimants may sometimes have failed to disclose anticipated or
pending court proceedings when applying for employment. Normally any non-
disclosure will have been before employment commenced. However, DMs should
look at the facts of each case before deciding whether such failure was during the
employment. If claimants obtained their employment by misrepresenting their ages
or their qualifications and were dismissed when the true position came to light, they
have not lost their employment through their misconduct.

K3188

The exact way in which the claimant lost paid work is not important. The claimant may
1. be summarily dismissed or
2. be dismissed with notice or
3. leave voluntarily (1) or
4. resign as an alternative to probable or possible dismissal (2).
In any of these circumstances, claimants can be held to have "lost their
employment" through misconduct. If they resign, this is so even though their
employer might not have dismissed them for the misconduct.

1 R(U) 17/64; 2 R(U) 2/76

K3189

It is also immaterial that the claimant was allowed to continue working for some time
after the act of misconduct (or the last such act) if there is an adequate explanation.
Examples of this are
1. the misconduct was being investigated
2. the result of criminal proceedings was awaited
3. the employer had not heard of the misconduct
4. the employer was awaiting a report (1).

1 R(U) 14/57

K3190

If, however, there is no adequate explanation for the delay it may be reasonable to
infer that it was decided at the time not to discharge the claimant and that the
eventual loss of employment was really due to some other cause. If the employer
has issued a statement that will provide strong evidence of the reason(s) for the
dismissal.

K3191 S5072

The claimant's misconduct need not be the only cause, or even the main cause, of
the loss of employment, provided it is an immediate and substantial reason for the
loss at that particular time. It is irrelevant that there are or may have been other
contributory factors.
The facts in the following examples are not exactly the same as the caselaw
quoted.

Example 1

Tim loses his employment because of inefficient workmanship, "trouble-making" and
absenteeism. The actual cause of his dismissal one afternoon is that he is absent
that morning and has been late on the two previous days. Tim has lost his
employment through misconduct (1).

Example 2

Brian, a fitter, is dismissed for "trouble-making" and for drunkenness on a
customer's premises. He is dismissed on receipt of a report about his drunkenness
from the customer. Brian has lost his employment through his misconduct (2).

Example 3

Rose, an apprentice draughtsman, is dismissed after she has been convicted of a
criminal offence unconnected with her employment. A further reason for her
dismissal is that she has failed to attend evening classes. The criminal offence is
misconduct and is the direct reason for her discharge. Rose has lost her
employment through misconduct (3).

Example 4

Paige is dismissed because her employer's insurance company increase the
premiums they have to pay to insure their fleet of vehicles. The insurance company
do so because Paige has been involved in four accidents. The insurance companies
of the other vehicles involved in the accidents show that all the accidents were
Paige's fault, so the employer's insurer cannot recover any costs. Paige has not lost
her employment through misconduct. She was dismissed because she was too big a
liability to be kept on.
1 R(U) 1/57; 2 R(U) 14/57; 3 R(U) 20/59

[K3192-K3200]

Leaving paid work or losing pay voluntarily

K3201 Introduction K3001

Legislation provides that a failure is a sanctionable failure where a claimant
voluntarily and without good reason
1. ceases paid work or
2. loses pay (1).
Note: For guidance on paid work see ADM Chapter J3 (Work -related requirements)
and for detailed guidance on good reason see ADM Chapter K2 (Good reason).

1 WR Act 12, s 26(2)(d)

K3202

The purpose of the sanction is to protect the NI fund from claims arising from
circumstances that claimants have brought upon themselves (1).
1 R(U) 3/81

K3203 Meaning of voluntarily

Claimants have voluntarily left their employment if they brought it to an end
1. by their own acts and
2. of their own free will.

K3204

Claimants have
not voluntarily left their employment if
1. they had no choice in the matter or
2. there is convincing evidence (preferably medical) that they were not
responsible for their actions.
Note: It is for the DM to consider in every case whether the claimant had good
reason for the failure. For detailed guidance on good reason see ADM Chapter K2.

[K3205-K3210]

K3211 Trial periods K3035 K3035 S5035

A reduction will not be imposed where a claimant takes up a job which is in excess
of their agreed limitations and then voluntarily
1. ceases paid work or more paid work or
2. loses pay
within a trial period (1).

1 UC Regs, reg 113(1)(b)(iii)

K3212

This provision ensures that a sanction will not be applied if a claimant takes up work
in excess of agreed limitations and subsequently leaves that work or reduces their
pay during a trial period. However if they leave as an alternative to being dismissed,
they may still be sanctioned for losing paid work through misconduct (see K3066 et
seq).
Note:
For detailed guidance on the meaning of paid work see ADM Chapter J3
(Work-related requirements).

K3213

A trial period will be 56 days beginning on the 29th day and ending on the 84th day
that the claimant took up the paid work or more paid work.

Example

Savannah is a single parent with 2 children, aged 7 and 9 in receipt of UC. She has
agreed with her adviser that in light of her caring responsibilities she is available for
part time work of 25 hours. She is offered a full time job working as a beautician in a
nail bar which is what she has trained for. She decides to take the job on a trial basis
to see if she can manage to work and organise after school child care for the
children. She decides to take the job and starts on 4.8.14. Her trial period will start
on 1.9.14, ending on 26.10.14. If she leaves the job within that period she will not be
sanctioned for leaving the job voluntarily.

[K3214-K3215]

K3216 4 week paid work trials through a work placement S5035

Some employers or providers offer 4 week paid work trials through a work
experience placement. Where a claimant leaves such a paid work trial within the first
4 weeks the claimant will be treated as having good reason where the employer and
claimant agree the job is not suitable unless they lose the place due to misconduct.
For example, the paid placement is not working out and the behaviours or actions of
the claimant have not prompted the early exit.
Note:
This would only apply where both parties agree that the work is not for them
and so by mutual consent agree to terminate the 4 week paid contract. Where the
employee decides for whatever reason that they want to leave and the employer say
that they would have been happy to continue with the contract the usual
considerations regarding leaving paid work voluntarily would apply.

[K3217-K3220]

K3221 Claimants who have no employment

Claimants cannot leave paid work at a time when they do not have any. Claimants
whose jobs were abolished have not left their work or lost pay voluntarily even if they
were offered or could apply for alternative jobs. But the DM may need to consider
whether they failed to comply with a requirement to take up or apply for paid work
(see K3061 et seq).
Note: For guidance on paid work see ADM Chapter J3 (Work-related requirements).

K3222 Women on maternity leave

A woman may decide not to return to work for up to 52 weeks after the beginning of
the week in which she has a child depending on her length of service. She has not
left her employment voluntarily unless the contract of employment continued up to
the date on which she decided not to return. But the DM may need to consider
whether she failed to comply with a requirement to take up paid work (see K3061 et
seq).

K3223 Mariners

Mariners whose employment comes to an end with the normal termination of articles
do not voluntarily leave employment if they then decide not to renew their contracts.

K3224 Police

Police officers qualify for maximum service pensions after 30 years. But this does
not mean that their contracts of employment will end. They will have left their
employment voluntarily if their contracts of employment have not ended and they
leave after 30 years (1).
1 R(U) 4/70

[K3225-K3230]

K3231 Resignation and dismissal

When claimants' employments ended because they had given notice, they have left
voluntarily even if they
1. were dismissed at once instead of being allowed to work out their notice (1) or
2. tried unsuccessfully to withdraw or cancel their notice (2).

1 CU 155/50(KL); R(U) 2/54; R(U) 1/96; 2 R(U) 27/59

K3232

While working out their notice, people may be dismissed in circumstances which
have no connection with those in which they gave notice. They have not left their
employment voluntarily. But the DM may need to consider whether they have lost
their employment through misconduct (see K3066 et seq).

K3233 Relationship to misconduct

Claimants have
not voluntarily left their employment if they resigned
1. because they genuinely believed that their employer was about to end their
employment at once or
2. when they were given the choice of resignation or dismissal.
In these cases the DM may need to consider whether they have lost their
employment through misconduct (see K3066 et seq).

K3234

Sometimes claimants have left their employment before the date on which the
employer would have dismissed them. Such claimants have voluntarily left their
employment and can be sanctioned. But the period of the sanction cannot be longer
than the number of days between the date they left and the date on which they would
have been dismissed. So, in cases where
1. claimants left because they expected to be dismissed and
2. the dismissal would have been because of the claimants' misconduct
it may be preferable to sanction the claimant on the grounds of misconduct if this
has been referred to the DM for a decision.

Example

Melanie Jackson is suspended from work on full pay whilst police investigate an
alleged theft by her from her employer. The employer tells her that she will stay
suspended until any court case against her has been heard. If she is found guilty she
will be sacked at once. The claimant, knowing that she is guilty of theft, resigns
before she can be dismissed. Three weeks after she resigns she goes to court and
pleads guilty to the charge of theft. If both misconduct and leaving voluntarily have
been referred to the DM for a decision, the DM can decide both that Melanie
1. left her employment voluntarily without good reason, because she left earlier
than she needed to and
2. lost her employment through misconduct.
The DM should impose a sanction on the ground that Melanie lost her employment
through misconduct and impose a reduction of 91 days.

K3235

If claimants and their employers agreed to end or suspend the claimants'
employment because of offences committed before their employment began they
have not voluntarily left employment (1).
1 R(U) 26/56; R(U) 1/58

K3236 Notice cancelled or suspended

Employers may have given claimants notice to end their employment. They may
then have cancelled or suspended this notice, so that the claimants could have
continued in the same employment. If claimants did not do so, they have voluntarily
left their employment. But if an offer of further employment was made after the
claimants' employment had ended, they have not voluntarily left their employment.
The DM may need to consider whether they failed to comply with a requirement to
take up or apply for paid work (see K3061 et seq).

[K3237-K3240]

K3241 Changing the terms and conditions of employment

If employers tried to impose a change in the terms and conditions of employment
1. without agreement and
2. which makes them a lot less favourable than before
they may have ended the employment by breaking the contract of employment (1). If
claimants left their employment in such circumstances, they will not have left
voluntarily. Employees who are dismissed for refusing to accept such changes have
not left voluntarily (2). However the DM may have to consider whether the claimant
failed to take up a reasonable employment opportunity (see K3061 et seq).
Note: It is for the DM to consider in every case whether the claimant had good
reason for the particular act, omission or behaviour. For detailed guidance on good
reason see ADM Chapter K2 (Good reason).
1 R(U) 25/52; 2 R(U) 7/74; R(U) 2/77

K3242 The national minimum wage K3243

Claimants may suffer detriment caused by their employer because the
1. employees (or someone on their behalf) were going to take action to enforce
or benefit from a right under the national minimum wage legislation (1) or
2. employer was prosecuted for an offence under the national minimum wage
legislation (2) or
3. employees qualify or may qualify for the national minimum wage or a
particular rate of the national minimum wage (3).

1 NMW Act 98; 2 s 31; 3 s 23

K3243

If claimants have suffered such detriment they may either
1. not have left employment voluntarily because they have been constructively
dismissed or
2. have good reason for leaving their paid work voluntarily.
Note:
The DM should make sure that the detriment was because of the reasons
given in K3242 1., 2. or 3.. See ADM Chapter K2 (Good reason) for detailed
guidance on good reason.

K3244 Absence from work

Claimants who had been absent from work can often be sanctioned for misconduct.
But sometimes they may have voluntarily left their employment.

K3245

If when they first claim UC claimants have
1. been absent from work or
2. failed to return to work after a period of suspension
it may be reasonable to decide that the employment has come to an end by the date
they claim, even though neither the claimant nor the employer have given notice. A
sanction for leaving voluntarily should be considered.

K3246

Where the employer has dismissed the claimant because of absence, and there is
no evidence that the claimant had already left the employment by that time, a
sanction for misconduct should be considered.

[K3247-K3250]

K3251 Claimants who volunteer for redundancy K3035 K3261 S5033

The DM should treat the claimant as not having left employment voluntarily where (1)
1. the claimant
1.1 volunteered or agreed to be made redundant and
1.2 either
1.2.a
was dismissed by the employer or
1.2.b was
not dismissed but left on a date agreed with the employer
following an agreement on voluntary redundancy or
2. the claimant had been laid off or on short-time for four weeks or six weeks out
of 13 and asked the employer for a redundancy payment (2) (see K3035 6.).
1 UC Regs, reg 113(1)(f); 2 ER Act 96, s 135(1) & 148 - 152

K3252 Meaning of redundant

The claimant could only volunteer or agree to be made redundant if there was a
redundancy situation as defined in employment legislation (1). The DM can accept that
there was a redundancy situation if the claimant had received a statutory redundancy
payment (2).

1 ER Act 96, s 139(1)(a) & (b); 2 s 135(1)

K3253 K3254

There was a redundancy situation as defined in employment legislation if the main or
only reason for the dismissal was
1. the employer stopped or intended to stop running the business
1.1 in which the employee was employed or
1.2 in the place where the employee was employed or
2. the business needed or expected to need fewer employees
2.1 to carry out a specific type of work or
2.2 to carry out a specific type of work in the place where the employee was
employed or
3. the business did not need or expected not to need any employees
3.1 to carry out a specific type of work or
3.2 to carry out a specific type of work in the place where the employee was
employed (1).

1 ER Act 96, s 139(1)

K3254

The business of the employer and any associated employers should be treated as
one business to satisfy any of the conditions in K3253 (1). The conditions in K3255 will
be satisfied if they happened either permanently or temporarily, and no matter what
caused them (2).
1 ER Act 96, s 139(2); 2 s 139(6)

K3255 Meaning of laid off and short-time K3254

Laid off means that a person employed under a contract of employment does not
have any work provided for them and as a result does not receive any pay for a
week (1). Short-time means that a person receives less than half the pay they usually
get for any week because there has been a reduction in the work they normally do (2).
1 ER Act 96, s 147(1); 2 s 147(2)

[K3256-K3260]

K3261 Claimants who leave employment early

Claimants have left voluntarily if they satisfied the condition in K3251 but they left
1. earlier than the date they
1.1
were to be dismissed by the employer or
1.2
agreed with the employer they would leave and
2. without the employer's agreement.

K3262 S5082

If the claimant does not have good reason a sanction should be imposed.
Note 1: See ADM Chapter K2 (Good reason) for detailed guidance on good reason.
Note
2: In UC all higher level sanctions are for a fixed reduction period, there are no
discretionary length sanctions (see K3011).

[K3263-K3270]

Members of Her Majesty's Forces

K3271 Voluntarily ceased paid work or loses pay

The DM cannot impose a sanction for leaving paid work or losing pay voluntarily on
serving members of HMF who are discharged at their own request (1). The DM should
accept the discharge document signed by or on behalf of the Secretary of State as
evidence of discharge (2).
1 UC Regs, reg 113(1)(d); SS (Ben) (Members of the Forces) Regs, reg 3(2); 2 reg 3(3)

K3272 Misconduct K3035 K3035 K3274 S5032

Serving members of HMF who are discharged, cashiered or otherwise dismissed
because they have been convicted under
1. relevant forces legislation (1) or
2. proceedings before any civil court
should be treated as if they have lost their employment through misconduct (2).
1 Naval Discipline Act 57; Army Act 55; Air Force Act 55;

2 SS (Ben) (Members of the Forces) Regs, reg 3(1)

K3273

A certificate signed by a person authorized by the Secretary of State which gives
1. confirmation
and
2. the date of the
2.1 discharge or
2.2 cashiering or
2.3 dismissal
is conclusive proof, unless it is proved that the person who signed the certificate was
not a person authorized by the Secretary of State (1).

1 SS (Ben)(Members of the Forces) Regs, reg 3(3)

K3274

If serving members of HMF are dismissed otherwise than outlined in K3272 although
the DM cannot treat them as having lost employment through misconduct, the DM
can consider whether they in fact lost their employment through misconduct.

[K3275]

K3276 Trade dispute stoppage K3035 K3035

No reduction should be made where the sanctionable failure in question is
1. a failure to
1.1 apply for a particular vacancy or
1.2 take up an offer of paid work or
2. that the claimant voluntarily
2.1 ceases paid work or
2.2 loses pay
because of a strike arising from a trade dispute (1).
Note: This applies even if the fact is not known at the date of the failure but comes
to light later. The DM can consider revising or superseding the decision if a reduction
period has already been imposed.

1 UC Regs, reg 113(1)(a) &(c)

K3277

For the job to be vacant because of the TD stoppage, the
1. stoppage must exist at the time the vacancy is notified or offered. It is not
enough that there is a TD, or that a stoppage seems imminent and
2. vacancy must have been caused by the stoppage. This will not be the case if
the vacancy
2.1 was caused by the illness of an employee, even if there is a stoppage of
work at the employer's premises or
2.2 arose normally after the stoppage had ended and the places of the
employees affected by the TD had been filled or
2.3 arose because an employee left a job where there was no stoppage in
order to take a job where there was a stoppage.

[K3278-K3280]