Barry v London Borough of Southwark

For Community-law worker status, employment may be part-time, short-term, casual or seasonal. The decisive question is whether the activity is genuine and effective, provides economic value to the employer, and is more than marginal or ancillary. Limited duration is relevant but cannot alone make paid employment marginal or ancillary.

When applying the six-month retention rule in the Immigration (European Economic Area) Regulations 2006, prior employment history may be relevant. The six months is a continuous period immediately before the relevant date. Separate periods of unemployment cannot be aggregated. Receipt of Jobseeker’s Allowance does not itself remove worker status.

A Dutch citizen sought housing assistance under Part VII of the Housing Act 1996. His entitlement depended on retaining Community-law worker status after becoming unemployed.

His only employment within the six months before a disabling accident was two weeks’ paid work as a steward at the Wimbledon Championships. Southwark’s review officer decided that the work was casual, seasonal, marginal and ancillary. On an appeal under section 204, the Lambeth County Court upheld that decision.

The central issue was whether the review officer had erred in law by treating the short-term employment as incapable of conferring worker status and by calculating the six-month unemployment period as Southwark contended.

1. Appeal allowed. Lady Justice Arden held, with whom Lord Justice Thomas and Lord Justice Lloyd agreed, that the review officer’s decision contained errors of law. The decision was set aside and Southwark’s respondent’s notice was dismissed.

2. Community law gives worker a wide meaning. Following the principles in Case 53/81 and Case 66/85, the employment relationship requires services performed for and under another’s direction in return for remuneration. The activity must be genuine and effective, must have economic value to the employer, and must not be merely marginal or ancillary.

3. Employment may be part-time, fixed-term, short-term, casual or seasonal. Its limited duration is relevant but not conclusive. The Wimbledon work was paid work of economic value. It was not ancillary to another relationship and was not marginal. Its two-week duration and seasonal character could not alone justify the contrary conclusion.

4. In applying regulation 6 of the Immigration (European Economic Area) Regulations 2006, it may be necessary to consider employment history outside the immediate six-month period. That history supported, but was not needed for, the conclusion that the Wimbledon work conferred worker status.

5. The six months in regulation 6(2)(b)(ii) is a continuous period immediately before the relevant date. Southwark could not aggregate an earlier period of unemployment with the later period. Nor could receipt of Jobseeker’s Allowance deprive the appellant of Community-law worker status. No reference to the Court of Justice was required because the governing principles were settled and their application resolved the appeal.

1. Court of Appeal (Civil Division): Allowed the appeal in [2008] EWCA Civ 1440, set aside the review officer’s decision, and dismissed the respondent’s notice.

2. Lambeth County Court: HHJ Welchman dismissed the appellant’s section 204 appeal by order dated 16 November 2007, holding that the review officer’s conclusion was a factual judgment not susceptible to review.

3. London Borough of Southwark review: On 4 July 2007, the review officer decided under section 202 of the Housing Act 1996 that the appellant’s Wimbledon employment did not make him a Community-law worker.