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Chapter R5: Trade disputes

General ....................................................................................................... R5001 Introduction
R5003:Entitlement
R5006:Exceptions
R5008:Trade disputes and sanctions
R5011:When there is no trade dispute
R5012:What the DM must establish
R5015:Evidence
R5016:Place of work
R5019:Burden of proof
R5022:General rule
R5028:Dock workers
R5032:Other similar jobs
R5039:Modification to the general rule
R5045:Separate department
R5050:Separate branch of work
R5055:Commonly carried on as a separate business
Trade dispute
R5060:Definition
R5063:Parties to the dispute
R5070:Reason for the dispute
R5080:Identifying the reason for the dispute
R5081:Meaning of dispute
R5085:Hostile action
R5091:At place of work

Stoppage of work
R5102:Meaning of stoppage of work
R5106:Appreciable interval
R5114:Stoppage due to trade dispute
R5115:A move in the contest
R5121:Significance of termination of employment
R5130:Stoppage no longer due to the dispute
R5131:Return to work delayed
R5150:Not employed due to stoppage
R5151:Direct result of stoppage
R5152:Indirect result of stoppage
R5154:Not in work immediately before stoppage
R5160:Significance of final termination of employment
R5163:Employment lost for other reasons
R5168:Left employment voluntarily before stoppage
Employment suspended indefinitely before stoppage
R5175:Suspended
R5176:The 12-day rule
R5183:When the 12 day rule does not apply
R5188:Definite period of suspension before stoppage
R5195:Incapacity for work during stoppage
R5201:Directly interested
Start date of stoppage
R5225:General rule
R5233:Direct interest acquired
R5234:Not employed because of the stoppage
R5235:Week
R5241:Return to work delayed
When disentitlement is not appropriate
R5245:Direct interest ends
R5252:Employed somewhere else
R5253:Employed
R5254:Somewhere else
R5255:Genuinely
R5264:Work ended due to redundancy
R5266:Genuinely returned to work, then left
R5267:Resumed work with employer
R5271:Subsequently left
R5272:For a reason other than the trade dispute
R5278:When the stoppage has ended
R5286:Normal working
R5290:Gradual return to work
R5295:Closure of business
R5302:Permanent reduction in trade
R5303:Withdrawal of labour
R5307:Labour
R5308:When has labour been withdrawn
R5315:To help further a trade dispute
R5316:Period of withdrawal
R5323:Statutory sick pay
R5326:Relevant date
R5330:Stoppage of work due to a trade dispute at the place of work
R5333:Direct interest
R5338:Other benefits

Chapter R5: Trade disputes

R5001 General

This Chapter gives guidance on trade disputes. Throughout this Chapter, unless
otherwise specified, "claimant" includes a member of a joint-claim.

R5002

Introduction

R5003 Entitlement R5340

Claimants are not entitled to JSA for any week in which they
1. are not employed because of a stoppage of work caused by a TD at their
place of work (1) or
2. withdraw their labour to help further a TD (2).

1 JS Act 95, s 14(1); 2 s 14(2)

R5004

A joint-claim couple are not entitled to a joint-claim JSA for any week in which
1. both members of that couple are not employed because of a stoppage of work
caused by a TD at their place, or places, of work or
2. each member withdraws their labour to help further a TD.
However where only one member of a joint-claim couple is affected by the above
they may still be entitled to joint-claim JSA (1).

1 JS Act 95, s 15A(2) & (3)

R5005

A week is a period of seven days beginning with a Sunday (1).
1 JS Act 95, s 35

R5006 Exceptions R5013

The TD provisions do not apply if claimants can show that during the stoppage of
work (1) they
1. start work somewhere else (see R5252 - R5260) or
2. have been made redundant (2) (see R5264 - R5265) or
3. have returned to work for their employer but have then left for reasons other
than the TD (see R5266 - R5274) or
4. are not directly interested in the dispute (3) (see R5201 - R5222).

1 JS Act 95, s 14(3); 2 ER Act 96, s 139(1) & (2); 3 JS Act 95, s 14(1)

R5007

The DM is not concerned with the merits of a dispute or whether the behaviour of
those involved is reasonable (1).
1 R(U)17/52(T); R(U)19/53; R(U)1/56; R(U)21/59; R(U)17/61; R(U)12/62

R5008 Trade disputes and sanctions

If the DM is asked to consider whether claimants have lost employment
1. due to a TD and
2. for reasons which may lead to a sanction
the TD question should be considered first.

R5009

If claimants can show that, although there is a stoppage of work, their employment
has ended, the TD provisions will not apply. But doubts may arise on a sanction
question (1).

1 JS Act 95, s 19

R5010

If claimants leave a job because they did not know that the vacancy was caused by a
TD stoppage when they accepted it see ADM Chapter K2: Good Reason.

R5011 When there is no trade dispute

There is no TD where the stoppage of work is due only to a protest against the
government or an Act of Parliament. But there is a TD where the dispute
1. involves government policy and
2. is between
2.1
employer and employees or
2.2
employees and employees and
3. is about the
3.1
terms of employment or
3.2
the employment of any person or
3.3
the non-employment of any person.

R5012 What the DM must establish R5013

Before deciding whether the claimant has lost employment because of a stoppage of
work caused by a TD the DM must establish
1. the claimant's place of work (see R5016 - R5057) and
2. that there was a TD at the place of work and
3. that there was a stoppage of work at the place of work and
4. that the stoppage was due to the TD and
5. that the claimant lost employment because of the stoppage of work.

R5013

If all of the points at R5012 2. to 5. are proved the claimant will not be entitled to JSA
unless they can show that R5006 applies (1).

1 JS Act 95, s 14(1)

R5014

If claimants have no direct interest in the TD but have withdrawn their labour to help
further the dispute they will not be entitled to JSA (1).
1 JS Act 95, s 14(2)

R5015 Evidence

Evidence is usually in the form of oral or written statements from the claimant or the
employer. The DM should not rely on unchallenged newspaper reports (1).
1 R(U)6/61; R(U)11/63

R5016 Place of work R5012 R5331

As a general rule a place of work is the premises or place where a person is
employed (1).

1 JS Act 95, s 14(4);

R5017

However, there is an exception to the general rule which helps claimants who work
for a large company which is made up of more than one business in the same
premises. In certain circumstances separate departments that would normally be
classed as one place of work, can be treated as separate places of work (see R5039
- R5057)1.

1 JS Act 95, s 14(5)

R5018

The DM must be satisfied that there is a TD at the place of work as defined in the
general rule (1). If not there is no need to consider the exception.
1 JS Act 95, s 14(4)

R5019 Burden of proof

If there is a TD at the place of work within the general meaning, then claimants must
prove that the exception applies to them.

[R5020-R5021]

R5022 General rule

When considering what the general meaning of place of work is, a reasoned,
practical approach should be taken. This must be neither too literal nor too narrow.

R5023

A place of work may be
1. a works of one or more buildings on one site or
2. a works where buildings are
2.1 spread over two or more adjoining sites and
2.2 integral parts of the business even if separated by a road, railway or
river (1) or
3. a building site where several employers and employees are following various
trades, even where this is not the employers' permanent place of business.
1 R(U) 1/70

Example

Robin works as a repair welder in the paint trim and assembly plant of a motor
company. The company consists of several plants on one large site which has two
roads and a railway running through it. Car bodies made in the connected body plant
are built into finished cars in the paid trim and assembly plant. Robin makes a claim
for JSA when he loses work because of a strike by sewing machinists who work in a
trim shop at another plant on the site. The DM decides that the company's site is
one place of work.

R5024

If an employer's buildings are on sites that are some distance apart they are
separate places of work.

R5025

If a firm owns several works in different places, each works is a separate place of
work.

[R5026-R5027]

R5028 Dock workers

Docks and shipyards are usually spread over a wide area. They are often made up
of several docks, yards buildings or wharves owned or used by several employers.

R5029

If a TD covers the whole area of the dock or shipyard, then there is a TD at the
claimant's place of work.

R5030

But if the dispute is limited to a particular yard or vessel the claimant's place of work
must be established. For the TD provisions to apply there must be a dispute at the
claimant's place of work.

R5031

If claimants look for work only at one particular place, for example a dock or
warehouse, then that is their place of work (1). But if those claimants were to
1. look for work or
2. be required to work
at different parts of the dock or shipyard, then all of those parts will be the place of
work (2). Their place of work will not be limited to the building or vessel where they
were working at the time the stoppage began.
1 R(U) 26/57; 2 R(U) 8/71; R(U) 30/57

Example 1

Vaughn is a dock pilot and is licensed to pilot vessels within the port of Milford
Haven. He loses his employment when a national strike reduces shipping. The DM
decides that the whole port is Vaughn's place of work.

Example 2

Fergal is employed by a firm of boilerscalers and worked for nine months on ships
berthed at a dock in Liverpool. The DM decides that the dock is Fergal's place of
work. The fact that the dock is not owned by his employers does not matter.

R5032 Other similar jobs

Consider such jobs as porters in markets or casual workers in the newspaper
industry in the same way as dock workers.

R5033

In the coal mining industry each pit or colliery is a separate place of work. But
districts or other divisions of a colliery are not separate places of work.

R5034

The reason the TD has to be at the claimants' place of work is so that they do not
lose JSA only because of an economic consequence of a dispute somewhere else
(but see R5092 - R5099 on the extension of a dispute).

R5035

The DM need not define exactly the place of work for people who normally travel
around in their job, for example sales representatives, lorry drivers and street
cleaners.

Example

Una works as a cab washer at a garage where taxi drivers are in dispute with their
employers. Because of the dispute with the taxi drivers Una is told there is no work
for her. She makes a claim for JSA. The DM decides that, as Una works at the same
place as the taxi drivers, there is a TD at her place of work.

R5036

Where
1. claimants work in several places and
2. there is a TD at each of them
there is a TD at the place of work, even if there is a stoppage at only one of them.

[R5037-R5038]

R5039 Modification to the general rule R5017

The general rule is that the place of work is the premises or place where the
claimant is employed. But if
1. part of the premises or place in question is a separate department in which a
separate branch of work is carried out and
2. that separate branch of work is usually carried out as a separate business in
separate premises or places
then the separate department is a separate place of work (1).

1 JS Act 95, s 14(5)

R5040

To benefit from this modification of the general rule claimants must show that
1. they are employed in a separate department on a separate branch of work
and
2. that separate branch of work is one that is usually carried on as a separate
business in separate premises or at a separate place and
3. that separate branch of work is carried on in a separate department on the
same premises or at the same place.

R5041

There is no need to consider the modification if it is clear that
1. there is a TD at the place of work and
2. it is in the claimant's department as well as others.

[R5042-R5044]

R5045 Separate department

The DM must first decide whether the premises or place is divided into separate
departments. Take into account
1. the organization, by the employer, of work and workers at the premises or
place (1) and
2. the division of work and responsibilities between managers and supervisors
and
3. the lay-out of the buildings, shops and machines.
The arrangements for payment of wages and salaries, or for accounting or costing
should be ignored.

1 R(U) 24/57

R5046

The actual organization by the employer at the premises or place in question should
be accepted. It cannot be altered by claimants or the DM. If there is no departmental
organization one cannot be invented.

Example

Richard is employed as a lorry driver by a firm of ship repairers. Apart from carrying
materials for their own firm, the transport section also does haulage work for ship
owners in the area. There is a stoppage of work at Richard's employer's premises.
Owing to a shortage of work caused by the stoppage, Richard is laid off. He makes a
claim for JSA. The DM decides that the transport section is a separate department.

[R5047-R5049]

R5050 Separate branch of work

A separate branch of work means more than just different work. In a large business
the work is usually organized as a series of operations performed by specialists.
Each operation is normally undertaken in different parts of the premises.

R5051

Where one operation is made up of several processes, one process will not usually
be a branch of work separate from the complimentary processes (1).
1 R(U) 4/62

Example

A firm of iron-founders usually produces castings at their own foundries. The
enamelling department at the firm processes these castings, and either assembles
them into complete appliances or puts them aside for the service department.
Enamelling is an integrated process of the production and not a separate branch of
work. The enamelling department is therefore not a separate place even though the
process of enamelling castings is usually carried on as a separate business.

R5052

The following are not separate branches of work
1. ancillary work, such as day to day maintenance and repair of machines and tools
2. general office work performed for production departments.

[R5053-R5054]

R5055 Commonly carried on as a separate business

Whether the separate branch of work is commonly carried on as a separate
business at separate premises is a question of fact. The answer depends on current
industrial organization. It is not enough for claimants to show that the branch of work
1. could be carried on as a separate business or
2. is carried on separately in isolated instances.

R5056

Claimants must show that the branch of work
1. is carried on as a separate business and
2. is carried on separately to such an extent that it can be said to be normally
carried on separately (1).

1 R(U) 5/61

R5057 R5012 R5017

The practice in other industries is not relevant.

Example 1

Zelda is employed in the export despatch department of a firm of iron-founders. She
loses her employment because of a stoppage of work caused by a TD in the
foundry. Zelda makes a claim for JSA. The DM obtains evidence that the packing
and despatching of manufactured products for export is highly specialised and that
many firms carry on the business of export packers on behalf of customers of all
kinds. There is also evidence that the packing and despatching of manufactured
goods for export is usually carried on as a separate business. The DM decides that
the TD was not at Zelda's place of work.

Example 2

Shirley is employed in the despatch department of a home delivery mail order
company. She loses her employment because of a stoppage of work caused by a
TD. Shirley makes a claim for JSA and the DM decides that the despatch
department is not a separate place of work.

[R5058-R5059]

Trade dispute

R5060 Definition

The statutory definition of TD covers
1. the people involved in the dispute and
2. the reason for the dispute.

R5061

A TD is any dispute
1. between
1.1 employers and employees or
1.2 employees and employees and
2. that is connected with
2.1 the employment or non-employment or
2.2 the terms or conditions of employment
of any person whether or not they are employees of the employer with whom the
dispute arises (1).

1 JS Act 95, s 35(1)

R5062

Disputes between two or more employers are not included in the definition.

R5063 Parties to the dispute

A TD can be between
1. an employer and their own employees or
2. an employer and employees of a different employer or
3. two or more groups of employees, whether employed by the same or different
employers.

R5064

Employees are persons classed as employed earners. They need not be in
employment or under contract at the time of the dispute. It is enough that they are
employees when working.

[R2065-R2066]

R5067 It does not matter whether a TD is
1. in one place, a few places or is nationwide or
2. pursued by employers or employees acting on their own behalf, or
represented by an employer's organization or trade union(s) or
3. supported, recognized or approved by the appropriate organisation or trade
union or
4. between more than two parties (for example an employer and two opposing
groups of employees).

[R5068-R5069]

R5070 Reason for the dispute

A TD must be connected with
1. the employment or non-employment or
2. the terms and conditions of employment of a person.

R5071

Most disputes fall within this definition, including those connected with the way in
which work is performed (1). If
1. employees
1.1 work to rule or
1.2 go slow or
1.3 ban overtime and
2. the employer threatens to
2.1 lock them out or
2.2
lay them off
there is a TD. Any resultant lock out or lay off is a stoppage of work due to a TD.

1 R(U) 5/87

R5072

Some issues that have led to a TD are
1. wages and hours of work (1)
2. redundancy and dismissal (2)
3. doing work taken over from another firm where there was a TD (3)
4. picketing (4)
5. a demand by fishermen for a registration system, work to be offered first to
union members, together with the setting up of a joint council (5)
6. withholding a bonus from an employee due to absence from work (6)
7. disagreement between two trade unions over the division of duties (7)
8. whether workers can be asked to do each others jobs (8)
9. an increased work quote (9)
10. trade union membership (10)
11. taking part in a compulsory pension scheme (11)
12. the stopping of tea-breaks and altering of time-keeping rules (12)
13. a change of conditions based on religious beliefs (13)
14. safety of machines (14)
15. a dispute over duties and rights under legislation dealing with the conditions of
employment (15)
16. an employer saying that the employees were not working as hard as they
could (16).
1 CWU 18/49(KL); R(U) 19/53; R(U) 27/56, R(U) 30/59; R(U) 12/60; 2 CU 274/50(KL); R(U) 11/52,
R(U) 25/53(T); R(U) 36/53; R(U) 29/59; 3 R(U) 19/51; 4 R(U) 2/53; R(U) 3/69; 5 R(U) 1/56;
6 R(U) 25/56; 7 R(U) 39/56; R(U) 36/58; R(U) 1/60(T); R(U) 14/64; 8 R(U) 6/61; 9 R(U) 32/57;
10 R(U) 12/60; R(U) 11/63; 11 R(U) 17/61; 12 R(U) 3/62; R(U) 4/62; 13 R(U) 12/62; 14 R(U) 3/71;

15 R(U) 5/77; 16 R(U) 5/87

R5073

As the DM is not concerned with the reasons for, or merits of, a TD the following do
not matter
1. whether the dispute is about something illegal
2. which party has caused the dispute or stoppage
3. whether one party is acting unreasonably, without consultation, or against
agreement or longstanding custom.

R5074

A dispute can start as a personal matter between one or more workers and the
employer. A stoppage of work can follow when other workers become involved (1).

1 R(U) 25/56; R(U) 12/62

R5075

The person causing the dispute does not have to be employed by the employer
involved in the dispute. A TD at one firm can spread to another firm and cause a
stoppage of work there.

[R5076-R5079]

R5080 Identifying the reason for the dispute

As there can be a dispute without a stoppage, the DM must distinguish between
them. If there was a dispute at the claimant's place of work, the DM should collect
information (1) to decide
1. what the dispute was about and
2. who was affected by it and
3. the background to it and
4. its development during the stoppage (2).
1 JS Act 95, s 14(1); 2 R(U) 25/56; R(U) 30/59; R(U) 6/61; R(U) 5/86

R5081 Meaning of dispute

A dispute means that two or more parties do not agree on an issue. They try to
persuade or force each other, and they resist each other. Disputes usually include
1. demands or proposals
2. objections
3. meetings
4. negotiations
5. other forms of mutually planned action or counter-action.

R5082

A dispute and a stoppage are not the same thing. There can be a dispute without
hostile action (1) (see R5085), and before agreed procedures for settling differences
are used (2). Just because an employer's association or the employees' trade unions
do not support the demands or proposals made, that does not mean that there is not
a TD (3).

1 R(U) 21/59; 2 R(U) 36/58, R(U) 1/60(T); 3 R(U) 18/58

R5083

If workers at the claimants place of work refuse to accept a practice which has been
accepted by their union's executive there is a TD (1).

1 R(U) 6/61

R5084

What the parties to the dispute do is often a better guide to the realities of the
situation than what they say (1).
1 R(U) 11/63

R5085 Hostile action R5082

Hostile action includes
1. a strike
2. go-slow working or working to rule
3. an overtime ban
4. meetings held by workers.
Note:
Claimants may say there is no dispute in spite of evidence to the contrary (1).

1 R(U) 36/58; R(U) 21/59

R5086

A dispute can exist without hostile action. But if there is hostile action it is usually an
indication that there is a dispute.

R5087

Although the employer and the workers may have differences, there is not dispute
where there are only
1. complaints
2. grumblings
3. agitation by discontented workers
4. tentative talks about future terms of employment (1).
Something more definite is needed before there is a dispute.

1 R(U) 21/59

R5088

If
1. an employer wants to impose new terms of employment on workers and
2. instead of disputing the matter, the workers simply leave their jobs the loss of
employment is not because of a stoppage of work due to a TD (see R5121
R5125).

[R5089-R5090]

R5091 At place of work

The TD must be at the claimant's place of work (1).

1 JS Act 95, s 14(1)

R5092 R5034

A TD can
1. start in one place and spread to another or
2. be brought to a place of work by pickets from somewhere else (1).

1 R(U) 1/74

R5093

If there is a TD at one place of work, and workers somewhere else strike in
sympathy, the dispute spreads to the place of work of the striking workers. This is so
even if they are not affected by the matter in dispute (1).

1 R(U) 15/55

R5094

If an employer locks workers out in support of another employer, the dispute has
been extended (1).

1 R(U) 23/64

R5095

A stoppage in one place of work can cause a stoppage at another place of work
where there is no dispute. If this is only because of an interruption in the supply of
1. materials or
2. service
then there is no dispute at the second place of work.

R5096

Workers at the claimant's place of work may be prevented from working by strikers
from another. The dispute can be
1. between the strikers and the non-strikers or
2. the strikers and their employers.
If the reason for the dispute is the employment, or non-employment, of some or all of
the workers at the claimants' place of work there is a TD at the claimants' place of
work.

R5097

A TD can be on a national or regional level. It can be between
1. a trade union or group of unions and
2. an employer or employer's association.

R5098

Even if the employers and workers at the different places of work affected by the
dispute take no part in the negotiations, there can still be a TD at all of those places
of work.

R5099 R5034

In all cases the DM must consider whether a stoppage at a particular place of work
is due to a TD, or is simply due to the effects of a stoppage somewhere else.

[R5100-R5101]

Stoppage of work

R5102 Meaning of stoppage of work

All work does not have to have stopped for there to be a stoppage of work. As long
as operations have been stopped or limited to more than just a negligible extent,
there is a stoppage. So work which would have been done is not being done
because of the stoppage.

R5103

A stoppage may be in the form of
1. a strike by workers or
2. a lock-out by employers or
3. an interruption or dislocation of work due to
3.1
an overtime ban or
3.2
a meeting (1) or
3.3
a stoppage at some other place of work.

1 R(U) 36/53

R5104

The number of workers not working is not so important as the proportion not
working. Where
1. a considerable number of workers stop work together and
2. an appreciable interval of time passes before
2.1
they return to work or
2.2
their places are filled by others
there will almost certainly be a stoppage of work (1).

1 R(U) 7/58

R5105

There can be a stoppage of work even if only one, or a few, workers stop work.
Large numbers of workers do not have to be involved.

R5106 Appreciable interval

An appreciable interval does not have to be measured in days. It can be measured in
1. minutes or
2. hours or
3. days (1).

1 R(U) 12/62

R5107

There is no stoppage of work where an employer does all of the work and maintains
output either by
1. getting replacements for workers who have stopped work or
2. reorganization.

R5108

If work is held up while replacements are obtained or re-organisation takes place,
there is a stoppage during the interval before work restarts. Where the employer
1. gets some replacements or
2. manages some reorganization but
2.1 has to give up or
2.2 postpone some parts of the work or
2.3 reduce output
there is a stoppage of work (1).

1 R(U) 7/58

R5109

It is up to the DM to get enough information to show that there is a stoppage of work
at the claimant's place of work.

[R5110-R5113]

R5114 Stoppage due to trade dispute

If the DM is satisfied that there is both
1. a TD and
2. a stoppage of work at the claimant's place of work
the DM must then decide whether the stoppage of work was due to the TD.

R5115 A move in the contest

To be due to a TD a stoppage of work must be a move in a contest between
1. an employer and employees, whether their own or not (1) or
2. employees and employees.
The aim of the stoppage is that work should be resumed on certain conditions (2).

1 R(U) 1/74; 2 R(U) 17/57

R5116

The stoppage of work is due to a TD if there
1. has been a refusal to work overtime, as a move in a dispute, somewhere at
the place of work and
2. is a stoppage of work somewhere else at the same place of work as an
economic consequence.

R5117

Where a stoppage is not a move in a dispute but happens only because of a
decision to
1. stop working altogether for an employer or
2. stop employing workers at all
it is not due to a TD. This is so even if the decision is taken because a TD exists (1).

1 R(U) 17/52(T)

R5118 R5331

A stoppage due to a TD means not only a stoppage of work, but a stoppage of work
because either
1. employees are unwilling to work or
2. employers are unwilling to give work
so long as some matter in dispute is unsettled (1).
1 R(U) 19/51; R(U) 17/52(T)

[R5119-R5120]

R5121 Significance of termination of employment R5088 R5162

It is not usually significant that notice to end employment has been given by the
employer or workers. Contracts of employment usually state that notice must be
given.

R5122

The fact that notice has been given does not mean that there is no intention to return
to work on new terms. It may be clear from
1. the conduct of the parties or
2. the course of previous negotiations or
3. the number of workers and employers involved
that neither side intends, or can afford, a permanent ending of relations (1). The
termination of employment is a trial of strength, ending in a resumption of relations
when the trial of strength is over (2).

1 R(U) 19/53; R(U) 19/51; 2 R(U) 17/52(T)

R5123

The fact that contracts have been terminated as a move in the dispute does not
matter. All that matters is that workers were in employed earner's employment when
employment was lost. Even if the employment of some workers has been
unconditionally terminated it does not mean that the stoppage at the place of work is
not due to a TD.

R5124

Terminations are not to be affected by the TD rules if it is shown that the employer or
the whole body of workers in dispute, are no longer willing to employ or to work for
the other party on any terms. Such stoppages are due to the determination of one
or both parties to have nothing further to do with the other (1).

1 R(U) 17/52(T)

R5125 R5088 R5162

But, if at any time during the stoppage either
1. the employer decides never to re-engage a particular employee or group of
employees (this decision may itself be a move in the dispute, for example to
coerce other workers) or
2. one employee, or group of employees, decide never to accept work again on
any terms with that employer
this decision does not end the stoppage (1).
1 R(U) 1/65

Example 1

Graham works in a machine shop. During a stoppage of work due to a TD his
employers move the machinery from the machine shop to other premises where it
could be operated by non-union workers. Graham's trade union say that the dispute
ended when his employers said that the machinery was to be moved because, from
that date, there was no work available to him. However, Graham's employers have
stated that they have not closed the machine shop with the intention of not opening it
again. When Graham makes a claim for JSA the DM decides that the stoppage of
work due to the TD continued after the machinery was moved.

Example 2

Emma's employer gave her and her colleagues notice of the termination of their
contracts. Emma and her colleagues were then offered new contracts of
employment. The offer was not accepted and a stoppage of work resulted. Emma
makes a claim for JSA. The DM decides that the stoppage of work was not due to
her employer's intention to finally sever relations with the workers but to the workers'
attitude to the notice. The DM also decides that Emma's stoppage of work was due
to a TD.

[R5126-R5129]

R5130 Stoppage no longer due to the dispute

A stoppage of work may be due to a TD at the start. But a stoppage can continue
even though the dispute has been settled. The DM should not give an adverse
decision for weeks in which none of the days of stoppage were due to the dispute.

R5131 Return to work delayed

If a dispute is settled but claimants cannot return to work because
1. a different dispute starts and
2. the claimants have no direct interest in the new dispute
they have no longer lost work because of a stoppage caused by a TD.

R5132

Claimants must prove that the stoppage of work is not caused by the TD (1).

1 CWU 18/49; R(U) 1/56

R5133

A stoppage sometimes carries on after the dispute is settled or after it has been
determined to go back to work. A stoppage can still be due to the dispute if there is a
delay before work
1. is started again or
2. can be said to be proceeding normally.
Whether the stoppage is still due to the dispute depends on the cause of the delay. It
does not matter who is to blame for the delay (1).

1 R(U) 1/56

R5134

Delays in returning to work after the settlement of a dispute or a decision to return to
work can be caused by the need to
1. carry out repair or maintenance work which has not been done or is needed
because of disuse
2. heat furnaces or ovens, or otherwise re-start processes in stages
3. get fresh supplies of stocks or raw materials
4. bring back machinery or equipment from other premises, where it was moved
during the stoppage.

R5135

Whatever the cause of the delay in returning to work, the stoppage is still due to the
dispute if
1. the cause of the delay was a natural and probable (not necessarily inevitable)
result of the TD and
2. it could reasonably have been foreseen by the parties to the dispute (1).

1 R(U) 9/80 Appendix

R5136 R5140

Where industrial action leads to a situation in which decisions have to be taken for
the best, claimants cannot successfully argue that a different decision would have let
them return to work at an earlier date.

R5137 R5140

Claimants can only successfully argue this if they are able to show that the decisions
taken were unreasonable or unacceptable for some other reason (1).

1 R(U) 9/80

R5138

A stoppage is no longer due to a TD if
1. the delay is obviously extreme (for example because the repair work has been
delayed unreasonably) or
2. some unrelated circumstances have clearly replaced the dispute as the
reason why the stoppage is continuing.

[R5139]

R5140

The DM is not concerned with the merits of the dispute or whether the parties have
acted reasonably (except as in R5136 - R5137). But
1. if a dispute has been settled or abandoned and
2. the workers are willing to return to work on terms acceptable to the employer
and
3. the employer prolongs the stoppage as an act of retaliation or as a disciplinary measure
the stoppage continues to be due to the dispute (1). If at the end of that period, the
workers refuse to work, the fact that both parties have prolonged the stoppage may
indicate that the dispute is continuing and that the stoppage was due to the dispute
during both periods.

1 R(U) 17/52(T)

R5141

During a stoppage, disputes about further matters can replace, or be added to, the
original cause of the dispute. If these further matters prolong the stoppage, it
continues to be due to a TD (1).

1 R(U) 12/60

R5142

Sometimes different groups of workers at the same place of work are arguing for
different things at the same time, and a stoppage follows. The stoppage may be due
partly to each of the disputes. It depends on the extent to which the issues and
events are connected.

Example

A national TD has caused a stoppage of work in the printing trade. When the dispute
is settled, the workers at Simon's firm are ready to go back to work on the negotiated
terms. However, by this time Simon's employer said that only non-union workers will
be taken on. The stoppage continues because the workers are not prepared to give
up their union membership. The DM decides that Simon continues to lose
employment because of a stoppage of work due to a TD, though not the dispute
which caused the original stoppage.

[R5143-R5149]

R5150 Not employed due to stoppage

If there is a stoppage of work due to a TD at the claimant's place of work, it must
then be decided whether the stoppage caused the claimant not to be employed.

R5151 Direct result of stoppage

Claimants are not employed as a direct result of a stoppage where they
1. strike or
2. are locked out or
3. are prevented from working because of the action of violent pickets at their
place of work (1).
1 R(U) 5/86(T) Appendix

R5152 Indirect result of stoppage

Employment may be lost as an indirect result of a stoppage (1) even when it is one or
more stages removed from the stoppage.
1 R(U) 5/86(T) Appendix

Example

All the workers in a factory are stood-off as an economic consequence of a strike at
their place of work. The stand-off is not itself a move in the contest. But it has
happened by reason of the stoppage which was caused by the strike due to a TD.

[R5153]

R5154 Not in work immediately before stoppage

Claimants may lose employment because of a stoppage of work even though
1. the work is intermittent or
2. they are not actually at work when the stoppage begins (see R5177).

R5155

If claimants have an offer of employment
1. withdrawn or
2. postponed because of a TD
they are not yet employed to work at a place of work (1).
1 R(U) 23/64

[R5156-R5159]

R5160 Significance of final termination of employment

Not being employed because of a stoppage is usually temporary. But there may be
cases where the loss of employment is not expected to be temporary.

Example

There is a stoppage of work caused by a TD at a clothing factory. Saleha is one of
four employees who have their employment terminated because of the stoppage. All
the other employees will be returning to work at the end of the stoppage. Saleha
makes a claim for JSA. The DM decides that she has lost her employment because
of the stoppage of work caused by the TD.

R5161

So final termination of employment is not always significant when deciding whether
employment has been lost due to a TD.

R5162

When considering what effect final termination has on deciding whether a stoppage
of work is due to a TD (see R5121 - R5125).

R5163 Employment lost for other reasons

A person is presumed to have lost employment because of the stoppage where
1. the employment ends and
2. a stoppage of work due to a TD starts at the same time.

R5164

But a person has not left work due to a stoppage of work if
1. the final date of employment was fixed before the dispute arose (for example
a person has a fixed term contract) and
2. the termination was not connected to the reasons for the dispute and
3. the dispute did not affect the termination of the employment in any way.

R5165

But the employment has been lost due to the stoppage if
1. the employment was due to end at a certain time and
2. it ends earlier because of the stoppage (even by only an hour).

[R5166-R5167]

R5168 Left employment voluntarily before stoppage R5171

When claimants leave employment shortly before a stoppage of work begins the DM
must establish whether they have
1. simply anticipated the stoppage or
2. left for some other reason.

R5169

If the DM finds that the claimants only wanted to avoid the effects of losing work due
to the stoppage then the employment was lost because of the stoppage (1) from the
date on which they last worked.

1 R(U) 30/55, R(U) 29/59

R5170 R5171

If a person genuinely leaves work for some other reason the employment has not
been lost because of the stoppage.

R5171

Where R5168 - R5170 applies a sanction question may arise.

Example 1

Desmond is a boilerman in a dockyard who leaves his employment four days before
the start of an unofficial strike at his place of work. Desmond makes a claim for JSA.
He gives no reason for leaving his employment. However, on the day he leaves
strikes have started elsewhere though it is not certain that there would be a
stoppage at his place of work. The DM decides that Desmond has left work in
anticipation of a stoppage and has lost his employment due to a TD stoppage.

Example 2

Rose is one of twelve workers given notice that they are to be made redundant. A
dispute arises between the unions and Rose's employer about the redundancies and
as a result the workers decide to strike. Rose leaves her employment, with the
agreement of her employer, eleven days before her notice is due to run out. Rose
leaves before there is a stoppage of work which starts later that same day. She
makes a claim for JSA. The DM decides that Rose lost her employment due to a TD
stoppage. This is because if Rose had not anticipated the stoppage, there would
have been no reason for her not to work her notice.

[R5172-R5174]

Employment suspended indefinitely before stoppage

R5175 Suspended

A worker is suspended when
1. the employer has no work for the person and
2. the worker is stood-off but not finally discharged.

R5176 The 12-day rule

The DM must apply the 12-day rule to decide whether a claimant's lack of
employment is due to a TD where
1. employment is indefinitely suspended and
2. a trade dispute occurs at the place of work.

R5177 R5154

Where a claimant's employment has been indefinitely suspended 12 working days or
less before a stoppage of work at the premises where they usually work they have
lost work due to the stoppage (1).

1 R(U) 20/57(T); R(U) 26/57

R5178

The presumption in the 12 day rule is that a claimant who
1. is suspended within 12 days of a stoppage and
2. would, but for the stoppage, have been re-employed after the date on which
the stoppage began
has lost the employment which would have existed after that date (1).

1 R(U) 31/57

R5179

A period of suspension from work starts on the day after the last day of work. If
before the stoppage a claimant
1. is suspended and
2. returns to work and
3. is suspended again
there are two separate periods of suspension. Apply the 12 day rule to the last
period of suspension even where the claimant returns to work for only one day (1).

1 R(U) 29/57

R5180

Days of recognized or customary holiday are not counted when deciding the number
of working days for which a claimant has been suspended (1). For guidance on days of
recognized or customary holiday see ADM Chapter R2: JSA conditions of
entitlement.
1 R(U) 21/57

[R5181-R5182]

R5183 When the 12 day rule does not apply

The presumption of the 12 day rule can be disproved if there is definite evidence to
the contrary (1). If a claimant is suspended within 12 days of a stoppage they must
show that it is very likely that
1. they did not lose work due to the stoppage and
2. they would not have been employed had there been no stoppage.
If it is doubtful whether they would have been employed had there been no
stoppage, they have not discharged the burden of proof.

1 R(U) 20/57(T), R(U) 21/57

R5184

If a claimant was suspended more than 12 days before the stoppage the DM should
accept that employment was not lost because of the stoppage.

Example 1

Gerald is suspended indefinitely twelve working days before the start of a stoppage
of work at his place of work. Several other workers are suspended at the same time.
Most of the other workers are re-engaged before the stoppage begins but Gerald is
not. Gerald remains unemployed and makes a claim for JSA until after the stoppage
is over. He then takes a job in another industry. The DM decides that Gerald has
proved that he did not lose his employment because of the stoppage of work.

Example 2

Laura is suspended indefinitely on the day before a stoppage of work at her place of
work begins. She makes a claim for JSA. The DM obtains evidence that work on the
order on which Laura had been working was completed. Laura starts work again two
days after the stoppage. The DM decides that Laura has not proved that she has not
lost work because of the stoppage. The DM makes this decision because the fact
that the work on the order was finished does not mean Laura would have been
dismissed. Also, the fact that Laura had been kept on until the day before the
stoppage began strongly suggests that she was suspended because of the
impending stoppage.

[R5185-R5187]

R5188 Definite period of suspension before stoppage

If
1. a claimant's employment is suspended for a definite period and
2. during that suspension a stoppage of work begins and
3. the stoppage prevents that claimant returning to work on the agreed date
the claimant has lost employment due to the stoppage from the date work should
have been resumed (1).

1 R(U) 12/61

R5189

This situation may arise where claimants are working
1. to a shift system or
2. to a rota system or
3. on short-time.

R5190

If claimants work only on certain days of the week, the days on which no work is
done should be treated as definite periods of suspension.

R5191

If a stoppage begins on a day claimants would not normally work, they have lost
employment due to a stoppage caused by a TD.

Example

Tom works on Mondays, Tuesdays and Saturdays. He makes a claim for JSA on
Wednesday 22.10.14, the day on which a stoppage of work due to a TD begins at
his place of work. The stoppage ends on Saturday 1.11.14. The DM decides that
Tom has lost employment due to a TD from Sunday 19.10.14 to Saturday 1.11.14.

[R5192-R5194]

R5195 Incapacity for work during stoppage

Claimants may be off work due to illness when a stoppage of work begins. If
1. they recover and claim JSA during the stoppage and
2. work would have been available if it were not for the stoppage
they have lost work due to the stoppage.

R5196

But where they were given notice before the stoppage began and
1. they do not recover until after their employment was due to end or
2. it cannot be confirmed that they would have been employed on their recovery
but for the stoppage
they have not lost employment due to the stoppage.

R5197

The DM should establish
1. what the claimant's contract says about sickness absences and
2. what the employer's practice is for holding open the jobs of sick workers.

R5198

Claimants may become ill during a stoppage of work due to a TD. If when recovered they
1. make a claim to JSA and
2. the stoppage of work due to a TD is continuing they will have lost employment because of the stoppage.

[R5199-R5200]

R5201 Directly interested R5006 R5333

If claimants can show that they have no direct interest in the dispute they will not
have lost employment because of a stoppage of work due to a TD (1).

1 JS Act 95, s 14(1)

R5202

There is no statutory definition of the term "directly interested". The question
whether claimants are directly interested in a dispute must always depend on the
particular facts and circumstances of each case (1). Claimants may have a direct
interest in a dispute and yet take no part in that dispute (2).

1 R(U) 14/71; 2 R(U) 14/64, R(U) 4/65

R5203

Where it is almost automatic that claimants will be affected by the outcome of a TD
they are treated as having a direct interest in that dispute (1). If there has to be an
intervening event between the outcome of the dispute and the terms of employment
being affected, claimants are not directly interested in the dispute (2).
1 R(U) 13/71, Watt v. The Lord Advocate 1979 S.C 120; 2 R(U) 8/72, R(U) 8/80

Example

The overlockers at Binita's place of work are in dispute with the management over
the rate of pay for overtime working. Binita is a clipper and is not directly involved in
the dispute. However, any renegotiated overtime rate will apply to all of the workers
at Binita's place of work. Therefore Binita has a direct interest in the outcome of the
dispute.

R5204

If claimants are laid off because of a dispute this does not mean that they have a
direct interest in that dispute. There must be a direct interest in the outcome of the
dispute, not simply in its existence (1).

1 Watt v. The Lord Advocate 1979 S.C 120

R5205

If claimants are laid off only because of the action of strike pickets that, on its own,
does not mean that they are directly interested in the dispute (1).

1 R(U) 3/69

R5206

It does not need to be the claimant's own pay or conditions that are the subject of
the dispute. Where different groups of workers, belonging to different trade unions
are employed by the same employer at the same place of work and there is a
dispute between the employer and trade union A, workers belonging to trade union B
are directly interested in that dispute if
1. whatever the outcome of the dispute the employer will apply it to workers in
trade union B as well as those in trade union A and
2. the application of the outcome of the dispute to all workers comes about
automatically as a result of
2.1 a collective agreement which is legally binding or
2.2 a collective agreement which is not legally binding or
2.3 established industrial custom and practice at the place of work
concerned (1).
1 R(U) 1/84 Appendix

[R5207-R5209]

R5210

It is for claimants to show that whatever the outcome of the dispute the terms or
conditions of their employment would not be affected almost automatically. It does
not matter whether the outcome is likely to be to the advantage or disadvantage of
the claimant (1).

1 R(U) 3/56

R5211

A dispute which starts off as personal, affecting only one person, can develop into a
dispute about a matter of principle affecting many others (1).

1 R(U) 25/56

R5212

It is the nature of the interest which is important, not its degree (1). For example
workers may have a direct interest in a dispute about plans
1. to abolish their afternoon tea break (2)
2. to reduce the time allowance for unpenalised lateness by two minutes a day (3).
Even though these matters are so insignificant that they could be ignored the
workers still have a direct interest in the dispute.

1 R(U) 3/62; R(U) 4/62; 2 R(U) 3/62; 3 R(U) 4/62

R5213

Workers are not directly interested in a dispute where an amendment of an
agreement to which they are party would not affect their position either for the better
or the worse (1).

1 R(U) 18/58

R5214

Workers are not directly interested in a dispute if their interest is only in an effect
which is not, and does not become, the subject of a dispute. The subject and limit of
the dispute must be identified before deciding whether a workers has a direct
interest in it.

Example 1

Eric is a surface worker at a coal mine. Some underground workers do not report for
work on a Sunday night because of a dispute about the pay for that shift. Eric loses
part of his weekly bonus as a result. Eric is not directly interested in the dispute
because it is about rates of pay for underground work on a Sunday night, not the
circumstances in which his bonus is withheld. Eric's loss of bonus is only an effect of
the dispute.

Example 2

Roy is also a surface worker at a coal mine. Paul, an underground worker at the
same coal mine, does not receive his bonus payment because he is absent from
work. A dispute develops because of this and all the underground workers withdraw
their labour as a result. Roy is directly interested in the dispute. This is because it is
about the conditions in which a bonus can be made and is of direct interest to all
workers covered by the bonus agreement. Roy is one of those workers.

[R5215-R5217]

R5218 Workers may have no direct interest in a dispute at the start of a stoppage. But
during the stoppage new matters may become the subject of the dispute. Workers
may then have a direct interest (1).

1 R(U) 12/60

R5219

A dispute can be about several things. Workers who are directly interested in some,
but not all, of these matters, are directly interested in the dispute (1).

1 R(U) 17/61; R(U) 3/62; R(U) 4/62

R5220

If workers are directly interested in the dispute then their own views on the subject in
dispute do not matter. It does not matter that they
1. are not members of the trade union involved in the dispute (1) or
2. disagree with fellow workers demands and wish to continue working (2) or
3. do not know what the dispute is about, nor that they have a direct interest in it (3)
or
4. do not know that a dispute exists (4).

1 RU) 22/57, R(U) 26/57; 2 R(U) 17/61; 3 R(U) 22/57; 4 R(U) 14/64

R5221

A TD can be about any condition of employment. Workers may have a direct interest
in disputes about
1. pay (1) or
2. the method of working out bonus earnings (2) or
3. the conditions governing payment of bonus (3) or
4. superannuation (4) or
5. time allowed for unpenalised lateness (5) or
6. tea breaks (6) or
7. demarcation of duties (7) or
8. interchangeability (8) or
9. heating arrangements (9) or
10. free provision of protective clothing (10).
1 R(U) 3/56; R(U) 13/71; R(U) 14/71; R(U) 8/72; R(U) 1/74; R(U) 6/78; R(U) 8/80; R(U) 12/80; R(U) 1/84;
2 R(U) 18/58; 3 R(U) 25/56; 4 R(U) 17/61; 5 R(U) 4/62; 6 R(U) 3/62; 7 R(U) 1/60(T); R(U) 14/64;

8 R(U) 6/61; R(U) 9/80; 9 R(U) 4/65; 10 R(U) 5/77

R5222 R5006 R5333

Workers who have a direct interest in a dispute may be able to show that they have
stopped having such an interest before the stoppage has ended.

[R5223-R5224]

Start date of stoppage

R5225 General rule

A stoppage starts on the first day on which work is
1. stopped or
2. limited to more than just a minor extent.

R5226

A stoppage can only begin on a day when work
1. is done or
2. would be done
but for the stoppage.

R5227

A stoppage cannot begin on a day when work would not be done anyway. If a
national or regional stoppage is arranged for a given date, and that day is a non-
working day in some of the places of work affected, the stoppage at those places
begins on the next working day.

R5228

A stoppage cannot start on different dates for workers at the same place of work.
Where different groups of workers at the same place of work stop work on different
dates the stoppage begins on the date the first group refuses to work or is prevented
from working. This may happen if
1. different groups decide to strike or are laid off on different dates or
2. there is shift, or staggered short time, working.

R5229

If the premises is divided into separate places of work the stoppage in these
separate places may begin on different dates.

[R5230-R5232]

R5233 Direct interest acquired

Workers who have no direct interest in the TD have not lost employment due to the
stoppage. But if at a later date
1. a new matter becomes an issue in the dispute and
2. those workers have a direct interest in it
they will have lost employment due to the stoppage (1). Any entitlement to JSA will end
from the first day of the week in which they do have an interest in the dispute.
1 CU 274/50(KL); R(U) 4/62

R5234 Not employed because of the stoppage

The DM must decide whether the stoppage of work has caused claimants not to be
employed on any day. If it has, they will not be entitled to JSA for any week which
includes a day on which they were not employed for this reason (1).
1 JS Act 95, s 14

R5235 Week

A week is a period of seven days beginning on a Sunday (1).

1 JS Act 95, s 35(1)

R5236

Even if
1. subject to R5238 5. the employment would have finished anyway before the
end of the stoppage (1) or
2. claimants would not normally have worked on every day during the stoppage,
for example because they are
2.1 a five-day week worker or
2.2 on short time or
2.3 a casual worker (2) or
3. claimants become incapable of work during the stoppage
they are not entitled to JSA.

1 R(U) 11/52; R(U) 17/56; R(U) 29/59; R(U) 12/72(T); 2 R(U) 32/55, R(U) 12/80

R5237

But if
1. a stoppage of work that claimants are directly interested in, ends and
2. claimants cannot work because of a further dispute that they do not have a
direct interest in
the stoppage of work caused by the second dispute will not have caused them not to
be employed.

R5238 R5236

When either
1. the stoppage comes to an end or
2. although the stoppage has not ended, it is no longer due to a TD or
3. claimants are no longer directly interested in the dispute or
4. claimants become genuinely employed somewhere else (1) or
5. claimants become redundant within the meaning of the relevant legislation (2) or
6. having genuinely resumed work with their employer, claimants then leave for
reasons unconnected with the TD (3)
the stoppage of work will no longer have caused the claimants not to be employed.
When either reason 1. or 2. applies, the same date is applied to all workers at the
same place of work. If 3. to 6. apply the date may be different for each worker at the
same place of work.

1 JS Act 95, s 14(3)(a); 2 ER Act 96, s 139(1)(2); 3 s 14(3)(c)

R5239

A stoppage of work can end even though the dispute continues. Claimants cannot
lose employment due to a stoppage of work if there is no stoppage in that week (but
see R5278 - R5284 if considering withdrawal of labour). But if, at a later date, there
is another stoppage of work because of the same dispute, this stoppage will have
caused them not to be employed (1).

1 R(U) 14/64

R5240

If workers refuse to work only on some days each week but work normally on other
days, there is a series of stoppages. But the DM will be concerned with the weeks
which include at least one day of stoppage.

R5241 Return to work delayed

In some cases a dispute is settled but return to work is prevented because of a
different dispute that claimants have no direct interest in. In these cases as the
claimants have no direct interest in the dispute, they have no longer lost work due to
a stoppage caused by a TD.

R5242

Claimants must prove that the stoppage is not caused by the TD (1).
1 CWU 18/49, R(U) 1/56

[R5243-R5244]

When disentitlement is not appropriate

R5245 Direct interest ends

Disentitlement to JSA will not be appropriate if claimants can show that they no
longer have a direct interest in the dispute. Claimants must show that they can no
longer be affected in any way by the outcome of the dispute.

R5246

They will usually be able to prove this by showing that they have permanently
stopped being a person who can be directly interested in the dispute.

R5247

Resignation or dismissal during the dispute is not enough to show that there is no
longer a direct interest in the dispute. If the reinstatement of a dismissed worker
becomes an issue in the dispute, then it has not been shown that the worker has
permanently ended relations with the employer.

R5248

Even if claimants are able to show that they have permanently ended relations with
the employer, they must also show that any settlement of the dispute does not affect
their position in any way during the period before the employment ended.

Example

There is a dispute about work at Sandra's place of work. As a result she resigns and
makes a claim for JSA. When the dispute is settled Sandra will receive arrears of
pay for the period before her employment ended. The DM decides that Sandra
cannot show that any settlement would not affect her position before her
employment ended.

R5249

It is important to look in detail at claimants' reasons for resigning, or the employer's
reasons for dismissing claimants, where it is alleged that
1. there has been a permanent ending of relations between claimants and the
employer and
2. the claimants' direct interest in the dispute has ended.

[R5250-R5251]

R5252 Employed somewhere else R5006

If claimants can show that during a stoppage of work they have become genuinely
employed somewhere else, they will no longer have lost employment due to the
stoppage of work (1). But a sanction question may arise (2).
1 JS Act 95, s 14(3)(a); 2 s 19 & 19A

R5253 Employed

"Employed" in this context means either employed earner's or self employment.

R5254 Somewhere else

This means somewhere other than where claimants worked when the stoppage
started. The new work must be
1. at different premises or
2. in a separate department on the same premises if that department is a
separate place of work.

R5255 Genuinely

Whether work is genuine is a question of fact to be decided by the DM. The decision
must be based on available evidence.

R5256

Work should be both genuine and taken up for an honest motive (1).

1 R(U) 6/74

R5257

If claimants show that the job was taken up for a proper reason, for example to have
a job and earn a living, then it is genuine. If this has been shown, the work
1. does not have to be permanent or
2. taken with the intention of permanently ending relations with the previous
employer.

R5258

Work can be genuine even if
1. it turns out to be temporary or
2. claimants know it will be temporary from the start.
The probable, or expected, duration of the work is only one element in considering
whether it is genuine. The fact that it turns out to last only a short time is not enough
on its own to find that it was not genuine.

R5259

Work is not genuine if the claimant
1. takes it or
2. maintains to have taken work which is a sham
simply to avoid disentitlement to JSA.

R5260 R5006

Work which is done for a big employer is usually genuine. But work which is done for
a small firm, owned by a friend, will often not be genuine. The DM must, in all cases,
find out exactly the nature of the work and how claimants came to start it (1).
1 R(U) 6/74

[R5261-R5263]

R5264 Work ended due to redundancy R5006

If claimants can show that during a stoppage they have been made redundant they
can claim JSA (1). The redundancy must be within the meaning of the relevant
legislation (2).

1 JS Act 95, s 14(3)(b); 2 ER Act 96, s 139(1)(2)

R5265 R5006

For guidance on whether work has ended due to redundancy within the meaning of
the relevant legislation see ADM Chapter S5: JSA Higher level sanctions. If there is
some doubt as to whether redundancy has resulted in the permanent ending of
relations between the employer and the employee, for example because the
redundancies were an issue in the dispute, refer the case to DMA Leeds.

R5266 Genuinely returned to work, then left R5006

Claimants who can prove that during the stoppage they
1. genuinely returned to work as an employed earner for the employer and
2. then left for reasons other than the TD
will not have lost employment because of the stoppage (1). This applies from the date
that the claimant returned to work for the employer.
1 JS Act 95, s 14(3)(c)

R5267 Resumed work with employer

Claimants have resumed work with the employer if they have gone back to work for
the same employer they worked for immediately before the stoppage began. It does
not have to be the same job. Any work with that employer is enough.

R5268

Claimants have not satisfied this condition if they have returned to work for a
different employer at the same place of work where they worked when the stoppage
began. Nor can they satisfy the "employed somewhere else" condition (1).
1 JS Act 95, s 14(3)(a)

[R5269-R5270]

R5271 Subsequently left

The word "left" includes leaving voluntarily and dismissal. It does not include
suspension. For guidance on the difference between termination and suspension
from work see ADM Chapter S2: JSA & employed earners.

R5272 For a reason other than the trade dispute

The main reason for leaving must not be the TD (1). It does not matter that the dispute
is a minor factor in the decision to leave if it seems likely that the claimants would
have left for another reason in any event.

1 JS Act 95, s 14(3)(c)

R5273

But if
1. the dispute is a major factor in the decision to leave and
2. it seems unlikely that claimants would have left if it had not been for the dispute
then it cannot be said that the claimants have left for reasons other than the TD.

R5274

The circumstances in which claimants leave employment may give grounds for a
sanction being imposed (1).
1 JS Act 95, s 19 & 19A

[R5275-R5277]

R5278 When the stoppage has ended R5239

Claimants have to prove that the stoppage of work has ended (1).

1 R(U) 1/56

R5279

A stoppage at a place of work ends when there has been a general return to work. If
the dispute has not been settled
1. workers may return to work a few at a time or
2. their places may be gradually filled by others.

R5280

In such cases the stoppage ends when the employers have got all of the workers
they need, that is, when work is no longer stopped or curbed
1. by workers refusing to work on the employer's terms or
2. by the employer's refusal to employ the workers on their terms or
3. because work has to be reorganised due to
3.1 circumstances directly resulting from the dispute or
3.2 repairs, which are necessary because of the stoppage, have not been
completed (1).

1 R(U) 25/57

R5281

The ending of a stoppage is a question of fact (1).

1 R(U) 5/86(T)

R5282

The date of the end of the stoppage is the last day of the stoppage. This is normally
the day before work is
1. resumed or
2. sufficiently resumed.

R5283

Settlement of the dispute, or an agreement to return to work, does not mean that the
stoppage has ended. If the employer and workers at a particular place of work do
not reach agreement on the terms of a return to work the stoppage has not ended at
that place of work even though there has been
1. a national settlement and
2. a general return to work elsewhere (1).

1 R(U) 12/60

R5284 R5239

But a stoppage may end without settlement of the dispute if the number of workers
1. returning to work or
2. whose places are taken by others
is enough to enable work to carry on normally again at the place of work concerned.

R5285

R5286 Normal working

Normal working need not be the same as it was immediately before the dispute or
stoppage started, for example
1. working practices or
2. the amount of work available
may have changed in the interim period, even if the stoppage had not happened.
This may be so particularly if the stoppage was lengthy.

R5287

Normal working means working which would be regarded as normal on the particular
day in question.

R5288

A stoppage of work cannot end on different days for different workers at the same
place of work (1).
1 R(U) 17/56

Example 1

There is a stoppage of work at the factory where Samantha works. She then returns
to work to do her own job but no other workers return to work. Samantha's return to
work does not bring the stoppage to an end.

Example 2

There is a trade dispute at a factory involving the coppersmiths. The coppersmiths'
labourers then withdraw their labour in support of the coppersmiths. However, a few
days later the labourers return to work but the coppersmiths do not return to work for
a further two weeks. The stoppage of work did not end until the date on which the
coppersmiths returned to work.

R5289

If premises are divided into separate departments which are separate places of
work, stoppages in these separate places can end on different dates.

R5290 Gradual return to work

It can be difficult to decide on what date work can be said to have returned to normal
in cases where there is a gradual return to work, for example where
1. it is normal for the number of workers to vary a lot depending on trading
conditions or
2. business has been lost because of the stoppage or
3. fewer people are needed to do the same amount of work as before the
stoppage (possibly because of previous over-staffing) or
4. the stoppage was so long, it is no longer possible to say what is normal
working because of industrial or other changes happening during the
stoppage.

R5291

When this happens the stoppage will have ended when the employers have got all
the workers they need to perform the work available.

R5292

If the employer cannot say definitely when they have got all the workers they need,
the stoppage will have ended when more than 90% of the workforce has gone back
to work (1). Cases of doubt should be referred to DMA Leeds.
1 R(U) 5/86

[R5293-R5294]

R5295 Closure of business

If
1. the employer
1.1 closes the business and
1.2 cuts all relations with the workers and
2. the only reason for the closure is the TD
claimants who have lost employment because of the closure have permanently lost it
due to a stoppage caused by the dispute (1). This means they will not be entitled to
JSA until they have had another job.

1 R(U) 15/80

R5296

But usually it is some reason other than the TD that leads to closure, such as
financial difficulties. In these cases, once the closure is complete, the stoppage is no
longer due to the TD.

R5297

In deciding whether there is a closure in this situation, the DM should consider the
1. nature and
2. extent and
3. characteristics
of the business. If the main reason for the company's existence has gone, and the
company has lost, or given up, its essential function and taken on no other function,
there is a closure (1). This is so even if work is continuing to dispose of the assets.
1 R(U) 15/80

Example

A company makes and sells goods. The employer has dismissed the productive
workforce. He will never re-employ or replace them. All trading procedures such as
looking for new work, selling and quoting for goods, has ended. The company is no
longer "in business" - even if work continues to dispose of its assets.

R5298

It may only be possible to decide the date of closure with hindsight. If the employer
has in effect withdrawn from the contest, continued picketing does not mean that the
company has not closed.

R5299

Where the DM thinks that permanent closure was due only to the TD and that an
adverse decision may be appropriate, the case should be referred to DMA Leeds.

[R5300-R5301]

R5302 Permanent reduction in trade

A stoppage does not come to an end automatically where employers decide that in
future they will only trade on a smaller scale. But once
1. all the necessary arrangements have been made and
2. business is being carried on at the reduced level
the stoppage is no longer due to the dispute.

R5303 Withdrawal of labour

Workers who
1. have not lost employment because there is a stoppage due to a TD but
2. nevertheless withdraw their labour to help further that dispute
are not entitled to JSA for any week that includes a day on which labour is
withdrawn (1).

1 JS Act 95, s 14(2)

R5304

Claimants may have withdrawn their labour if they
1. have previously been found to have lost employment because of a stoppage
of work caused by a TD and
2. make a new claim after the stoppage has ended.

R5305

Claimants who withdraw their labour in furtherance of a TD in which they have no
direct interest may later acquire such an interest. In these cases they will have lost
employment because of a stoppage of work caused by a TD (1).
1 JS Act 95, s 14(1)

R5306

R5307 Labour

Labour includes both self-employed and employed-earner's employment.

R5308 When has labour been withdrawn

Claimants will have withdrawn their labour if
1. they do not attend for work or
2. having turned up for work, they then refuse to do any (or only a small amount)
of the work which is normally their own, even where their employer lays them
off or
3. having been laid off they then refuse to return to work when it becomes
available. In this case claimants will have withdrawn their labour from the date
on which they refused to return to work.

R5309

Claimants will still have withdrawn their labour, even if the employer terminates their
contract of employment as a move in the dispute.

[R5310-R5311]

R5312 Whether claimants have withdrawn their labour is a question of fact. The DM should
consider, amongst other things
1. what claimants were asked to do and
2. what duties they had to perform under the terms of their contracts and
3. what, if anything, they did in fact do and
4. what they were prepared to do.
If claimants refuse only to work overtime, or refuse to perform only a small portion of
their own duties, they have not withdrawn their labour. Cases of doubt should be
referred to DMA Leeds.

R5313

If claimants work for part of the day and then stop work, they will have withdrawn
their labour for that day.

R5314

Withdrawal of labour is a voluntary act. Claimants who are prevented from working
by picket violence, or the threat of it, have not withdrawn their labour.

R5315 To help further a trade dispute

The withdrawal of labour must be to help further a TD. The dispute does not need to
be at the claimant's place of work. Nor does there need to be a stoppage of work,
either at the claimant's or any other place of work.

R5316 Period of withdrawal

Claimants will not be entitled to JSA from the first day of the week in which, on any
day, they withdrew their labour. This will be a Sunday.

R5317

If claimants then resign, or are dismissed by their employer, the DM must establish
whether that is merely a move in the dispute.

R5318

If claimants can show that
1. their employment has been unconditionally ended and
2. the employer or the claimants concerned are no longer willing to employ or be
employed by the other
an adverse decision should not be given.

R5319

Where the re-instatement of a worker becomes an issue in the dispute, it cannot be
said that that person has permanently ended relations with the employer.

[R5320-R5322]

R5323 Statutory sick pay

If an employer and an employee disagree about whether there is entitlement to SSP,
a DM will make a decision.

R5324

There is no entitlement to SSP (1) if on the relevant date there is a stoppage of work
due to a TD at the claimant's place of work.

1 SS CB Act 92, Sch 11, para 1 & 2(g)

R5325

This rule will not apply if the claimant can show that at no time, on or before the
relevant date, did they have a direct interest in the TD in question (1).
1 SS CB Act 92, Sch 11, para 7

R5326 Relevant date

The relevant date is the date on which a period of entitlement to SSP would begin if
it were not for the TD provision (1)

1 SS CB Act 92, Sch 11, para 3

R5327

The DM dealing with the SSP question may not be experienced in deciding TD
questions. The DM dealing with the SSP question can ask a SDM to decide whether,
on the relevant date, there was
1. a stoppage of work due to a TD at the claimant's place of work and
2. if so, whether the claimant has proved that at no time on or before that date
did they have a direct interest in the TD.

[R5328-R5329]

R5330 Stoppage of work due to a trade dispute at the place of work

The DM deciding the TD question will only need to consider whether there was a
stoppage of work due to a TD at the claimant's place of work on the date referred by
the DM deciding the SSP question.

R5331

When considering whether there was a stoppage of work due to a TD see R5016
R5118.

R5332

The question whether a claimant has lost employment due to the stoppage does not
arise for SSP purposes.

R5333 Direct interest

In deciding whether claimants have, or had, a direct interest in the TD in question,
follow the guidance in R5201 - R5222.

R5334

Claimants must prove that at no time on or before the relevant date did they have a
direct interest in the dispute.

R5335 R5340

Once claimants have had a direct interest it cannot assist their claim if their interest
ended before the relevant date. But if claimants have not had a direct interest in the
dispute, up to and including the relevant date, it does not matter if they later acquire
a direct interest. It is only the position up to and including the relevant date that
matters.

[R5336-R5337]

R5338 Other benefits

There are other benefits where entitlement depends on whether the claimant, or
their partner, is involved in a TD.

R5339

The DM determining entitlement to these benefits may not be experienced in
deciding TD questions. They may ask the DM who is experienced in deciding TD
questions for
1. a decision or
2. an opinion
as to whether the claimant, or their partner, is involved in a TD.

R5340

If such a question is referred to the DM who is experienced in deciding TD
questions, they should
1. make their decision or
2. give their opinion using the guidance in R5003 - R5335.

[R5341-R5499]