Barry v London Borough of Southwark

This appeal concerns one of the eligibility conditions for social housing. A person is not in general ineligible under this condition if he is a worker from another EEA State. But if he has ceased to work, certain restrictions apply. In particular, he must not have been unemployed for more than six months. In this context, Community law governs the concept of “worker”. By a decision dated 4 July 2007, the review officer of the respondent, the London Borough of Southwark (“Southwark”), pursuant to s 202 of the Housing Act 1996 (“the 1996 Act”), determined that the appellant, Mr Barry, a citizen of the Netherlands and thus a citizen of the European Union, was not a “worker” for the purpose of Community law for a period of two weeks in July 2006 in which he worked as a steward at the All England Tennis Championships at Wimbledon. This was the only employment that he had undertaken in the relevant six month period. The question to be decided on this appeal is whether that decision discloses an error of law. By an order dated 16 November 2007, HHJ Welchman, sitting in the Lambeth County Court, held on an appeal to the County Court under s 204 of the 1996 Act that this decision was one for the judgment of the review officer and that in the circumstances it was not susceptible to review, and this appeal is against his order.

The consequence of the decision of the review officer, if correct in law, is that Mr Barry is not eligible for housing assistance under Part VII of the 1996 Act. Mr Barry had the misfortune to suffer a serious accident on 17 December 2006. In consequence of that, he is unable to work.

The relevant eligibility condition for social housing is in s 185(1) of the Housing Act 1996:

“A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.”

However, reg 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations (“the AHHEE regulations”) provides:

“(1)

A person who is not subject to immigration control is to be treated as a person from abroad who is ineligible for housing assistance under Part 7 of the 1996 Act if - (a) subject to paragraph (2) he is not habitually resident in the United Kingdom…

(2)

The following persons are not to be treated as persons from abroad who are ineligible for housing assistance pursuant to paragraph 1(a)- (a) a worker…”

By virtue of reg 2(2) of the AHHEE, the definition of “worker” in reg 6(1) of the Immigration (European Economic Area) Regulations (“the EEA regulations”) applies. By virtue of reg 6(1)(a) of the EEA regulations, “worker” means a worker within the meaning of art 39 of the Treaty establishing the European Community. Art 39 provides:

“1.

Freedom of movement for workers shall be secured within the Community between workers of the member States as regards employment, remuneration” etc.

2.

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regards an agreement, remuneration and other conditions of work and employment.

3.

It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a)

to accept offers of employment actually made;

(b)

to move freely within the territory of Member States for this purpose;

(c)

to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d)

to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn by the Commission….”

However, Mr Barry’s contention is that he falls within reg 6(2)(b)(ii) of the EEA regulations. Reg 6(2)(b)(ii) seeks to deal with the position of workers, who have become unemployed, in the following way:

“(2)

A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if …(b)he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and…(ii) he has been unemployed for no more than six months…”

The EEA regulations, and the relevant provisions of the AHHEE, implement the rights conferred by EC Directive 2004/38 (“the Directive”). Art 7 of the Directive provides that in certain circumstances a Union citizen shall retain the status of worker for six months after becoming involuntarily unemployed. The parties have not suggested that the EEA regulations or the AHHEE regulations do not properly implement the Directive. Hence the importance of establishing whether Mr Barry was a worker for Community law purposes when he was employed at the Wimbledon championships. To resolve this appeal, I will need to consider the concept of “worker” under Community law, but first I set out the background.

Mr Barry began to reside in the United Kingdom in 2004. He was employed as a security guard from August 2005 until the beginning of May 2006. He was without question a worker for Community law purposes in that period. This employment terminated because he did not have the requisite qualification to obtain a Security Industry Authority Licence, which was a newly imposed requirement. He had temporary employment as a security guard with Chubb Personnel Security Limited off and on until 29 May 2006. Southwark accept that he was employed until that time.

From early June, Mr Barry was on Jobseeker’s Allowance, and he continued to receive Jobseeker’s Allowance during the time that he was employed at Wimbledon. His employer was Group 4 Securicor. He was employed as a steward and the period of his employment was 24 June to 9 July 2006. He was paid £789.86 net for those two weeks’ work. He was unemployed thereafter. In October, he obtained the qualification to be a security guard. On 17 December 2006, as I have explained, he had a road accident. As a result, he has had no employment since that date.

It is common ground that, for Mr Barry to have been employed in the six months last preceding his accident, he would have for some part of that period to have been a worker for the purposes of Community law. The only relevant work which could make him a worker in that period was his work at the Wimbledon tennis championships. The judge was referred to the decision of the Court of Justice of the European Communities (“the Court of Justice”) in D.M.Levin v Staatssecretaris van Justitie, Case 53/81. The judge held that it was not contentious that, for someone to be a worker for the purposes of Community law, “(a) they should perform services for and under the direction of another person, (b) in return that person must receive remuneration, although it need not be a particular level and (c) the person must perform services of some economic value that are genuine and effective and more than marginal or ancillary and the economic value must be to the employer.” (judgment, [25]).

The review officer did not consider that Mr Barry’s work at Wimbledon had made him a worker for Community law purposes:

“The work at Wimbledon was a finite period of employment, that by its very nature, could not have extended past the two week period of the championship. This is casual and seasonal work that becomes available every year and requires a large workforce for that short two week event. Due to its limited duration, seasonal and casual nature, I am of the opinion that this cannot be considered as effective and genuine employment. I have also noted that you continued to be on Jobseekers Allowance during the time you worked at Wimbledon.

Your role as a steward was a finite period of employment, which could not have extended past the two weeks of the championship. This is casual and seasonal work. Every year, Wimbledon runs for a period of two weeks and employs people in various jobs. This work is not effective and genuine, but instead is marginal and ancillary.

Therefore I am satisfied that your two weeks’ work as a steward at Wimbledon does not confer [on] you worker status. This means that your last employment before your accident on 17 December 2006 was more than six months before, when you were employed as a security officer. This means that your worker status was not retained under reg 6(2)(b)(ii) because you have been unemployed for more than six months at the date of your accident.”

In his judgment, the judge considered two decisions of the Court of Justice, which I shall have to consider below. He rejected the argument that the period of six months’ unemployment could include periods of unemployment outside the previous six months. He also rejected the argument that the fact that Mr Barry had received Jobseeker’s Allowance prevented the work from being of real economic value, though it was still a relevant factor that the review officer was entitled to take into account. He accepted that work could be full-time, part-time or of fixed or short duration: the type of employment was simply a matter to be taken into account. He held that the question whether Mr Barry had been a “worker” when he worked at the Wimbledon tennis championships was one of fact and that the review officer’s decision had not been perverse.

The principal submission of Mr Richard Gordon QC, for Mr Barry, is that Southwark made an error of law in not addressing the work history of Mr Barry as a whole. Mr Gordon submits that the expression "worker" has a Community meaning and is concerned with freedom of movement, one of the fundamental freedoms conferred by the Treaty. Therefore the term should not be interpreted restrictively (on this, see for example, R. H. Kempf v Staatsecretaris van Justitie Case 139/85); He further submits that the wide meaning is consistent with Community secondary legislation, for instance, the rules conferring freedom of movement apply to part-time workers, including those who work for less than the minimum wage. He accepts that the freedom of movement rules only cover activities which are effective and genuine and exclude activities which are on such a small scale as to be marginal and ancillary and protect only those who are desirous of pursuing economic activities. On his submission, work history must not be excluded. It is necessary to look at work history to tell whether the work was ancillary or marginal. The freedom of movement provisions do not penalise those who have had a break in their employment. Mr Gordon submits that it is clear that Mr Barry was employed on a full-time basis for nine months.

Mr Gordon relies on a number of cases, including Levin and Ninni-Orasche v Bundesminister fur Wissenschaft Case C 413/01. In Levin, the Court of Justice considered the meaning of the word "worker" for the purposes of EC law. Mr Gordon submits that the word requires three criteria. The person must perform services of some economic value to the employer; the services must be "genuine and effective" and the services must be more than "marginal and ancillary". Part-time activities are included, unless they are on such a small scale as to be regarded as purely marginal and ancillary. It is not relevant that the period of unemployment is less than the period of residence in the member state. The court should consider all the circumstances relating to the nature of the activities in question and the employment relationship at issue (see Ninni-Orasche at [27]). This does not include factors outside the activities or employment relationship in question, such as the fact that, shortly after the period of employment, the person became a student (see Ninni-Orasche at [32]).

Mr Gordon submits that Mr Barry’s earlier employment and his employment at the Wimbledon championships cannot be severed from his earlier employment history. He further submits that Mr Barry retained the status of worker even if regard is had to his work at the Wimbledon championships work alone.

Miss Kerry Bretherton, for Southwark, submits that the question whether Mr Barry was a worker was one of fact and that it was for the review officer to evaluate the facts. The review officer committed no error of law. The period spent at the Wimbledon championships did not constitute relevant work. If it was work, it was not necessary to look at the earlier period. If the period spent at the Wimbledon championships was not work, the earlier period could not convert the period at the Wimbledon championships into work. She also submits that Mr Barry failed to raise the error of law now relied on before the review officer but this point has not been pursued.

In my judgment, it is clear that Community law gives the term “worker” a very wide interpretation. This can be seen from Levin and Lawrie-Blum v LandBaden-Wurttemberg, Case 66/85.

Levin is the leading authority and I must therefore deal with it at some length. In Levin, Miss Levin, a United Kingdom national, sought a residence permit from the Dutch authorities on the basis that she was a “worker” for the purposes of Community law. This was refused by the Dutch authorities so far as relevant because she was employed for only 30 hours a week as a chambermaid and earned less than the minimum wage under Dutch law. Her entitlement to a residence permit was governed by Community law. The Court of Justice held that the expression “worker" was not subject to different interpretations according to domestic law but was a concept governed by Community law. A person might be a “worker” even if he works for less than the minimum wage and even if he works only part-time. The motives of the person for working in the particular member state were irrelevant. However, the services which he provides must be real and actual and not marginal or subsidiary. The relevant part of the judgment was as follows:

“First and second questions

6.

In its first and second questions, which should be considered together, the national court is essentially asking whether the provisions of Community law relating to freedom of movement for workers also cover a national of a Member State whose activity as an employed person in the territory of another member state provides him with an income less than the minimum required for subsistence within the meaning of the legislation of the second Member State. In particular the court asks whether those provisions cover such a person where he either supplements his income from his activity as an employed person with other income so as to arrive at that minimum or is content with means of support which fall below it.

7.

Under article 48 of the Treaty freedom of movement for workers is to be secured within the Community. That freedom is to entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and is to include the right, subject to limitations justified on grounds of public policy , public security or public health , to accept offers of employment actually made, to move freely within the territory of Member States for this purpose, to stay in a Member State for the purpose of employment and to remain there after the termination of that employment .

8.

That provision was implemented inter alia by Regulation (EEC) no 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English special edition 1968 (ii), p.475) and Council Directive 68/360/EEC of the same date on the abolition of restrictions on movement and residence within the Community for workers of the Member States and their families Official Journal, English special edition 1968 (ii), p.485). Under article 1 of regulation (EEC) No 1612/68 any national of a member state is, irrespective of his place of residence, to have the right to take up activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that state.

9.

Although the rights deriving from the principle of freedom of movement for workers and more particularly the right to enter and stay in the territory of a Member State are thus linked to the status of a worker or of a person pursuing an activity as an employed person or desirous of so doing, the terms' 'worker' 'and' 'activity as an employed person' 'are not expressly defined in any of the provisions on the subject. It is appropriate, therefore, in order to determine their meaning, to have recourse to the generally recognized principles of interpretation, beginning with the ordinary meaning to be attributed to those terms in their context and in the light of the objectives of the treaty.

10.

The Netherlands and Danish Governments have maintained that the provisions of Article 48 may only be relied upon by persons who receive a wage at least commensurate with the means of subsistence considered as necessary by the legislation of the Member State in which they work, or who work at least for the number of hours considered as usual in respect of full-time employment in the sector in question. In the absence of any provisions to that effect in Community legislation, it is suggested that it is necessary to have recourse to national criteria for the purpose of defining both the minimum wage and the minimum number of hours.

11.

That argument cannot, however, be accepted. As the Court has already stated in its judgment of 19 March 1964 in case 75/63 Hoekstra (nee Unger) (1964) ECR 1977 the terms' 'worker' 'and' 'activity as an employed person' ' may not be defined by reference to the national laws of the Member States but have a Community meaning . If that were not the case, the Community rules on freedom of movement for workers would be frustrated, as the meaning of those terms could be fixed and modified unilaterally, without any control by the Community institutions, by national laws which would thus be able to exclude at will certain categories of persons from the benefit of the treaty .

12.

Such would, in particular, be the case if the enjoyment of the rights conferred by the principle of freedom of movement for workers could be made subject to the criterion of what the legislation of the host State declares to be a minimum wage, so that the field of application ratione personae of the Community rules on this subject might vary from one member state to another. The meaning and the scope of the terms 'worker' 'and' 'activity as an employed person' 'should thus be clarified in the light of the principles of the legal order of the Community.

13.

In this respect it must be stressed that these concepts define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.

14.

In conformity with this view the recitals in the preamble to Regulation (EEC) no 1612/68 contain a general affirmation of the right of all workers in the Member States to pursue the activity of their choice within the Community, irrespective of whether they are permanent, seasonal or frontier workers or workers who pursue their activities for the purpose of providing services. Furthermore, although article 4 of Directive 68/36/EEC grants the right of residence to workers upon the mere production of the document on the basis of which they entered the territory and of a confirmation of engagement from the employer or a certificate of employment, it does not subject this right to any condition relating to the kind of employment or to the amount of income derived from it.

15.

An interpretation which reflects the full scope of these concepts is also in conformity with the objectives of the treaty which include, according to articles 2 and 3, the abolition, as between Member States, of obstacles to freedom of movement for persons, with the purpose inter alia of promoting throughout the Community a harmonious development of economic activities and a raising of the standard of living. Since part-time employment, although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions, the effectiveness of Community law would be impaired and the achievement of the objectives of the Treaty would be jeopardized if the enjoyment of rights conferred by the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage at least equivalent to the guaranteed minimum wage in the sector under consideration.

16.

It follows that the concepts of 'worker' 'and' 'activity as an employed person' must be interpreted as meaning that the rules relating to freedom of movement for workers also concern persons who pursue or wish to pursue an activity as an employed person on a part-time basis only and who, by virtue of that fact obtain or would obtain only remuneration lower than the minimum guaranteed remuneration in the sector under consideration. In this regard no distinction may be made between those who wish to make do with their income from such an activity and those who supplement that income with other income, whether the latter is derived from property or from the employment of a member of their family who accompanies them.

17.

It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on freedom of movement for workers , those rules cover only the pursuit of effective and genuine activities , to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary . It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity .

18.

The answer to be given to the first and second questions must therefore be that the provisions of Community law relating to freedom of movement for workers also cover a national of a member state who pursues , within the territory of another Member State , an activity as an employed person which yields an income lower than that which, in the latter State, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.”

In Lawrie-Blum, the Court of Justice held that a trainee teacher was, throughout the period of his training placement, under the direction and control of the institution to which he was attached. He had to carry out instructions and comply with regulations throughout a substantial period of his teaching placement. He had to teach pupils, thus supplying services with an economic value. The payment he received could be treated as remuneration in respect of those services and obligations. The court held that the criteria required to establish a work relationship were established.

In my judgment, it follows from the above that work will be subsidiary or ancillary if it is done pursuant to some other relationship between the parties which is not an employment relationship, as where a lodger performs some small task for his landlord as part of the terms of his tenancy. The duration of the employment is, however, a factor to be taken into account. The duration of the work in the relevant period is not, however, a conclusive factor in deciding whether a person is a “worker” for Community law purposes (see Ninni-Orasche at [25]).

There are reasons why there may well be a need in the context of reg 6 of the EEA regulations to look at prior employment history. The first reason stems from the nature of the provision in question. This focuses on the applicant’s employment history in the immediate period of six months. That period is necessarily a part of a larger whole. Moreover, the period of any employment in the immediate six months must be a short period: it must be one which is less than six months. If a person had been employed immediately prior to the commencement of the six month period, and then was not employed for more than one day of the six month period, it seems to me impossible to argue that he was not a worker on that day and within the six month period. The member state is protected by the fact that, for this provision to apply at all, the person in question must have been a “worker” before the six month period began. This example shows that in that situation it is necessary to look at employment outside the six-month period.

Another example will demonstrate that the duration of the employment in the six month period cannot be the determining factor. A worker may in the ordinary course of his work have a number of short term employments, for example, as a professional who is a locum. For this purpose again it is necessary to look at the employment history prior to the six months. We find in this case that Mr Barry was employed by a security agency and that he had a number of employments of short duration. I do not, therefore, consider that the fact that his employment with the Wimbledon championships was of short duration deprived it of its ability to render Mr Barry a worker. He was only a steward but that may be explicable because he was no longer able to work as a security guard since he was unable to comply with new regulations which required him to have a licence.

The work which Mr Barry performed was in any event of economic value since, if he had not performed that service, the Wimbledon championships would have to have employed someone else to fulfil his duties. It was not ancillary to any other relationship between Mr Barry and the Wimbledon championships. It was not marginal because it was a role for which the Wimbledon championships was prepared to pay a not insignificant sum as remuneration. The Wimbledon championships made deductions from his pay on the same basis as if he were any other employee.

In the later case of V.J.M. Raulin v Minister van Onderwijs en Wetenschappen Case C-357/89, the Court of Justice was concerned with the question whether a person was a worker where he had been employed to be on call for work for a period of eight months but had only been called on in that period to work for sixty hours, which had all been performed in a single period of three weeks. The Court of Justice made it clear that the national authorities were to determine whether a person was a worker by applying the law to the facts and that the limited duration of the work was a relevant factor:

“13.

It should be recalled that whilst part-time work is not excluded from the field of application of the rules on freedom of movement for workers, those cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17). It is up to the national courts to make the necessary findings of fact in order to establish whether the person concerned can be considered to be a worker within the meaning of that case-law.

14.

The national court may, however, when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary. The national court may also take account, if appropriate, of the fact that the person must remain available to work if called upon to do so by the employer.”

The Raulin case also provides some support for the conclusion to which I came above that, in some contexts at least, the prior employment history might be a relevant factor. The Court of Justice pointed out that, where a worker became a student, the status of worker was lost unless there was a link between his work and his studies. This link was not necessary if he became unemployed involuntarily. To determine whether the link existed, the national court had to examine his employment history. The Court held:

“18.

As for the occupational activities performed in the host Member State, it should be pointed out that in the field of assistance granted for university education, the Court has already held that, except in the case of involuntary unemployment, retention of the status of worker is conditional on there being a relationship between the previous occupational activity and the studies pursued (judgment in Case 39/86 Lair v Universitaet Hannover [1988] ECR 3161, paragraph 37). It is for the national court to assess whether all the occupational activities previously exercised in the host Member State, regardless of whether or not they were interrupted by periods of training or retraining, bear a relationship to the studies in question.

19.

The answer to the third question must therefore be that in assessing whether a person is a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host member State but not the activities which he has pursued elsewhere in the Community.”

Ms Bretherton has relied on the first of these citations from Raulin. Moreover, the judge also considered that the decision of the review officer was one of judgment which was not susceptible to review on appeal to the court. However, in my judgment, the review officer did not consider whether the prior employment history was a relevant factor in determining whether Mr Barry's employment in the six-month period made him a worker in period for Community purposes. In addition, the work at Wimbledon was capable in itself of making Mr Barry a worker for the reasons already given. The review officer could not properly come to any other conclusion and, therefore, committed errors of law. Accordingly in my judgment, the decision must be set aside.

As the question raised by this appeal is one of law, we do not need to consider the test applicable in Community law to review by the court of a discretionary decision. I need not deal with all of Mr Gordon’s detailed submissions, in particular as to whether Mr Barry was employed under a fixed term contract. However, in response to his reliance on art 39, in my judgment, I would observe that the purpose of reg 6 of the EEA regulations is not only to protect freedom of movement. By imposing a six-month period, it is also protecting the social security systems in member states.

The respondent has issued a respondent’s notice seeking to uphold the decision of the judge on two additional grounds. The first ground is that, even if the review officer was wrong to hold, as he did, that Mr Barry was not a “worker” for the period of two weeks spent at the Wimbledon championships, the review officer was nonetheless entitled to treat Mr Barry as unemployed for more than six months, because there was an earlier period which could be aggregated to the period of 5 1/2 months. Miss Bretherton submits that there is nothing in the regulations to require periods of unemployment (if more than one) to be consecutive. I reject this point. Hers is a possible meaning of the language read literally but it would give reg 6(2)(b)(ii) a capricious effect according to the length of time a person had been in employment. On the true interpretation of reg 6, the only relevant period of six months is that immediately before the relevant date, which in this case is the date of Mr Barry's accident. The second ground in the respondent’s notice is that the periods during which Mr Barry was in receipt of Jobseeker’s Allowance have to be excluded. I reject this argument also. The question whether a person is a "worker" is to be determined by reference to the principles laid down by the Court of Justice set out above, which exclusively define a worker (see, for example, Brown v Secretary of State for Scotland Case 197/86 at [22]). There is no provision that he is to be deprived of that status because he was also receiving Jobseeker's Allowance, and the authority relied on by Miss Bretherton, Bulent Kurz v Wűrttenberg Case C-188/100, does not support this submission. That case deals with the wrongful entry of the person into the member state, not his wrongful receipt of social security benefits.

Mr Gordon submits that if the court is in any doubt as to the meaning of the term “worker" in this context, it should refer a question as to the meaning of the Directive as it applies to this case to the Court of Justice. Miss Bretherton opposes this. In my judgment, the Court of Justice has laid down the relevant principles and this case raises no new point of principle. This case is really concerned with the application of the principles to the facts. In those circumstances, I do not consider that it would be appropriate to refer any question as to the interpretation of the Directive to the Court of Justice.

For the reasons given above, in my judgment this appeal should be allowed and the decision of the review officer must be set aside and the respondent’s notice dismissed.

I agree with both judgments

I agree with Lady Justice Arden that this appeal should be allowed.

Mr Barry’s entitlement to the benefit of the duties of the respondent local housing authority under Part 7 of the Housing Act 1996 depends on whether he was a worker for the purposes of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006. In turn, that requires reference to the Immigration (European Economic Area) Regulations 2006, which I will call the EEA Regulations.

It is common ground that, if Mr Barry was to be treated as still a worker, for these purposes, when he suffered his accident on 17 December 2006, then he continued to be within the definition until the relevant time, namely when he applied for housing assistance, by virtue of regulation 6(2)(a) of the EEA Regulations. It is also common ground that he was a worker until 29 May 2006, by virtue of work done by him over the previous nine months.

If his previous period of work had been of a year or more, he would have qualified under regulation 6(2)(b)(i) of those Regulations. Since it was for less than a year, he was to be treated as remaining a worker either for a period of 6 months, under regulation 6(2)(b)(ii), or while he was seeking work with a genuine chance of obtaining it, under regulation 6(2)(b)(iii). He failed to establish the latter to the satisfaction of the local authority review officer, on the basis that he was not being realistic in his search for work, and that is not challenged on appeal. Accordingly, he had to rely on the six month provision, and therefore he had to show that he had last been employed no more than six months before the date of the accident. He could do so if, but not unless, what he did during the Wimbledon Championships between 26 June and 9 July 2006 counted as “work”, so that he was a worker for this purpose during those two weeks.

I agree with Lady Justice Arden that the period of six months must be continuous. Article 7(3)(c) of Directive 2004/38, with its words “the status of worker shall be retained for no less than six months”, seems to me to contemplate a continuous period running from the end of the last period of employment, and to be intended to allow the person in question, in any event, that period during which to make such arrangements as he can to deal with the loss of employment. It is not open to a party such as the local authority to add together the latest and another previous period or periods of unemployment so as to aggregate more than six months.

It is unnecessary to consider whether the one year period of employment mentioned in paragraph 6(2)(b)(i) of the EEA Regulations has to be continuous, since Mr Barry did not have a year’s prior employment on any basis.

The guidance given by decisions of the European Court of Justice, as cited by Lady Justice Arden, shows that, in order that the person in question should qualify as a worker, the employment must be “effective and genuine”. The antithesis to such employment is described in the Court’s judgments as being “marginal and ancillary”. It is accepted that the work can be part-time, short-term, casual or seasonal and still qualify. The respondent argues that its review officer was entitled to take the view that the work at Wimbledon did not qualify because it was so very short-term and casual.

However, ECJ decisions (in particular Ninni-Orasche Case C-413/01, at paragraph 19) show that a short period of employment, even one which was never going to be other than short, can qualify so long as the activity pursued is genuine and effective, rather than marginal and ancillary, and is of economic value to the employer. Lady Justice Arden has cited Levin, of which paragraphs 17 and 18 are particularly in point. I also find assistance in Lawrie-Blum v Land Baden-Württemberg Case 66/85, [1986] ECR 2121, at paragraphs 16-18:

“16

Since freedom of movement for workers constitutes one of the fundamental principles of the Community, the term ‘worker’ in article 48 [now 39] may not be interpreted differently according to the law of each Member State but has a Community meaning. Since it defines the scope of that fundamental freedom, the Community concept of a ‘worker’ must be interpreted broadly (Judgment of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035).

17

That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.

18

In the present case, it is clear that during the entire period of preparatory service the trainee teacher is under the direction and supervision of the school to which he is assigned. It is the school that determines the services to be performed by him and his working hours and it is the school’s instructions that he must carry out and its rules that he must observe. During a substantial part of the preparatory service he is required to give lessons to the school’s pupils and thus provides a service of some economic value to the school. The amounts which he receives may be regarded as remuneration for the services provided and for the duties involved in completing the period of preparatory service. Consequently, the three criteria for the existence of an employment relationship are fulfilled in this case.”

Applying the general criteria indicated in that passage, during the two weeks in question (“a certain period of time”) Mr Barry was a person who “performs services for and under the direction of another person in return for which he receives remuneration”. He provided “a service of some economic value” to his employer, since otherwise he would not have received remuneration of £830 (gross) for his work during the two weeks.

It is true that this period of work was short, though I dare say that Mr Barry may have worked long hours during the fortnight in question. I see no reason why, if the question arises, a short period of employment should not count for these purposes. It was real work, and genuine employment. I see nothing about it which could render it fairly describable as marginal. Though it did not last for long, there is nothing in the facts which suggests that it could fairly be regarded as an activity “on such a small scale as to be regarded as purely marginal and ancillary”. Lady Justice Arden gives an example at paragraph 20 of why work might be properly regarded as ancillary, for this purpose. There could be other examples, but I agree with her that there was no other status or activity on the part of Mr Barry to which the work could be regarded as ancillary.

I find it telling that in paragraph 17 of Levin the Court introduces the test, and the antithesis, in the context of pointing out that part-time workers are as eligible for protection as full time workers. I can see that it may have been feared that some part-time work would involve working for so little time, over any given relevant period, that it would not properly be regarded as establishing a true economic motive for the activities on the part of the person in question. I can see no proper basis for doubting that Mr Barry was intent on pursuing economic activity when he obtained and undertook his short-term contract at Wimbledon.

I agree with Lady Justice Arden that there may be instances in which it is appropriate and necessary to look at the previous employment history of the person in question, going back more than 6 months from the date as at which it is necessary to establish whether he or she is to be treated as a worker or not. That is indicated by paragraph 18 of the ECJ’s judgment in Raulin, which she has quoted.

In the present case, it seems to me that, on the one hand, such reference would support Mr Barry’s claim to be still a worker during his fortnight at Wimbledon but, on the other hand, that this is not necessary, because there is nothing about the work at Wimbledon which shows that it should not be treated as genuine and effective work for these purposes. The review officer relied on its casual and seasonal character, and the fact that it lasted only for 2 weeks (and could not have lasted for longer) for the conclusion that the work was not genuine and effective but rather marginal and ancillary. In my judgment that conclusion could not follow merely from the characteristics identified. Accordingly, I do not agree with the judge that the review officer had reached a conclusion which could legitimately be reached in assessing the facts.

Some reference was made to the fact that Mr Barry received Jobseekers’ Allowance both before and during, as well as after, his two weeks of work at Wimbledon. It is possible that he ought not to have received it during those two weeks, but whether or not that is so, I agree with Lady Justice Arden that it can have no relevance to the question whether he was a worker for that fortnight.

For those reasons, and for those more fully set out by Lady Justice Arden, I consider that the conclusion that Mr Barry had been unemployed for more than 6 months on the date of his accident was wrong in law, because the review officer’s assessment of his period of work during the Wimbledon Championships as irrelevant for this purpose was one which could not stand if the right tests were applied.