Ann Summers Ltd., R (on the application of) v Jobcentre Plus

A public employment service may adopt policies governing the vacancies it handles, but the policy must remain within its statutory purposes. It may consider conscientious objections, embarrassment and the practical operation of encouragement, notification and sanctions. It must also assess the benefit to jobseekers, its duty to assist employers, the effect of vacancies advertised elsewhere and less restrictive methods of administration. A blanket ban is unlawful where the decision-maker elevates sanctions beyond their proper purpose, relies on unsupported assumptions and fails to consider workable alternatives. The court may quash both the individual decision and the policy where the policy is inseparably connected with the inadequate reasons advanced for it.

Ann Summers challenged Jobcentre Plus’s decision of 14 November 2002 refusing to accept advertisements for its vacancies. The decision followed a review which produced a policy excluding businesses significantly involved in selling sex-related products usually available through licensed sex establishments and not commonly found elsewhere on the high street.

The challenge concerned rationality, the relevance of sanctions under the jobseekers legislation, proportionality, the Local Government (Miscellaneous Provisions) Act 1982, and the risk of inconsistent or arbitrary administration. The central issue was whether Jobcentre Plus had lawfully balanced its duties to jobseekers and employers when applying the policy.

1. Claim succeeded. The decision refusing to accept Ann Summers’ advertisements, and the last bullet point of the policy, were quashed. Leave to appeal was refused. The costs were directed to detailed assessment.
2. Under section 2(1) of the Employment and Training Act 1973, Jobcentre Plus had duties both to assist jobseekers and to assist employers. Ann Summers had no absolute right to use the service, but the statutory scheme required a measure of flexibility and prevented exclusion based solely on inadequate operational reasoning.
3. Jobcentre Plus was entitled to consider the likely operation of encouragement, notification and sanctions, including the possibility that some jobseekers would conscientiously object to work involving sexual products and might experience embarrassment. It was not entitled to elevate the sanctions process beyond its proper purpose or to rely on unsupported assumptions about the number of objections and their effect on the system.
4. The decision-maker had to balance the possible difficulties against the benefit to jobseekers willing to work for Ann Summers, the employer’s recruitment interests, the effect of externally advertised vacancies, and workable alternatives. The policy failed to consider adequately that external advertisements would create similar issues and that advertisements might be accepted while withdrawing active encouragement, notification and sanctions or attaching an appropriate warning.
5. The products sold by Ann Summers retained their character as sex products despite changing social attitudes and their sale by other mainstream retailers. Section 4(1) of the Local Government (Miscellaneous Provisions) Act 1982 was relevant to the description of the products, but the court expressed no view on whether licensing was required.
6. The court applied the principle stated in R v Ministry of Defence ex parte Walker [2000] 1 WCR 806: judicial review was not concerned with whether a scheme was good or bad, or whether a better scheme could have been devised. Here, however, the reasons given were open to scrutiny and did not withstand rational review.

First-instance judicial review in the High Court (Administrative Court). The decision and the relevant policy provision were quashed. Permission to appeal was refused.