FSDM01
Higher Level Sanctions
Illustrative Examples
Facilitator’s Running Note 2
v12.0 August 2017
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FSDM01 Higher Level Sanctions Illustrative Examples
FRN 2
Contents
Contents ......................................................................................................... 2
How to use this Facilitator’s Running Note ................................................. 5
Advice for Decision Making Paragraphs ...................................................... 6
Principles of Decision Making ...................................................................... 6
A1340: Standard of proof - balance of probability ......................................... 6
A1341: Balance of probability ....................................................................... 6
A1392: Inherently improbable evidence ........................................................ 7
Good Reason ................................................................................................. 7
K2004: Good reason not defined in legislation .............................................. 7
K2005: Onus on claimant to show good reason ............................................ 7
K2006: Situations where claimant can be excused work related activities .... 8
K2007: Personalised requirements ............................................................... 8
K2021: The 'reasonable' test ......................................................................... 8
K2022: Establishing the key facts ................................................................. 8
K2023: Consideration of all the facts and evidence ...................................... 9
K2041: Previous failures ............................................................................... 9
K2052: Considering all the individual circumstances of the case .................. 9
K2062: Domestic violence .......................................................................... 10
K2073: Mental health .................................................................................. 10
K2091: Homelessness ................................................................................ 10
K2093: What being homeless can mean ..................................................... 10
K2112 (note 2): Domestic situations ........................................................... 11
K2116: Claimant's condition or personal circumstance ............................... 11
K2117: Evidence of significant harm to health ............................................ 11
K2118: Medical evidence not available ....................................................... 12
K2122: Significant harm to claimant's health ............................................... 12
K2271: Personal and domestic circumstances ............................................ 12
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K2272: Moving home .................................................................................. 12
K2274: Evidence required about moving home ........................................... 13
K2275: No attempt to find employment before moving ................................ 13
Failure to Take up Paid Work or Apply for a Vacancy .............................. 13
K3051: Claimant fails to take up or apply for paid work ............................... 13
K3057: Refusal or failure ............................................................................ 14
K3058: Claimants change their mind .......................................................... 14
K3059: Vacancy suspended or withdrawn .................................................. 15
Loss of Paid Work or Pay through Misconduct ......................................... 15
K3067: When a sanction can be imposed for misconduct ........................... 15
K3069: What is misconduct......................................................................... 15
K3070: Claimant's actions must be blameworthy ........................................ 16
K3071: Poor performance and inefficiency.................................................. 16
K3072 Point 3: What constitutes misconduct .............................................. 16
K3072 Point 7: What constitutes misconduct .............................................. 16
K3081: Onus of proof in misconduct cases ................................................. 17
K3082: Balance of probabilities in misconduct cases .................................. 17
K3083: Evidence in misconduct cases ........................................................ 17
K3086: Giving the claimant a chance to comment ...................................... 17
K3093: Reports of court or employer's hearings ......................................... 18
K3094: Evidence of a conviction ................................................................. 18
K3097: Hearsay and eye-witness evidence ................................................ 18
K3106: Misconduct outside employment ..................................................... 19
K3112: Failure to follow rules and regulations ............................................. 19
K3172: Use of bad language ....................................................................... 19
K3186: Whether misconduct caused the loss of paid work or pay ............... 19
K3189: Claimant continued working for some time after the misconduct..... 20
K3190: No adequate explanation for the delay ........................................... 20
K3191: Misconduct must be an immediate and substantial reason for the loss at
that particular time ...................................................................................... 20
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Leaving Paid Work or Losing Pay Voluntarily ........................................... 20
K3203: Meaning of voluntarily ..................................................................... 20
K3241: Changing the terms and conditions of employment ........................ 21
K3251: Claimants who volunteer for redundancy ........................................ 21
K3252: Meaning of redundant ..................................................................... 22
K3253: Redundancy situation as defined in employment legislation ........... 22
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How to use this Facilitator’s
Running Note
This Facilitator's Running Note (FRN 2) accompanies
Facilitator’s Running Note 1 (FRN 1).
FRN 2 lists all the Advice for Decision Making (ADM)
paragraphs that are quoted in FRN 1.
FRN 1 has 6 illustrative examples which are designed to
cover different higher level sanctionable failures that
Decision Makers will deal with.
As a minimum, the participants should identify the all the
ADM paragraphs quoted in FRN 1. However, they may
identify other paragraphs that they consider relevant.
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Advice for Decision Making
Paragraphs
The ADM paragraphs are listed alphabetically by
eto
Chapter and then by paragraph.
N
This is not the order in which they appear in FRN 1. You
can get directly to the required paragraph by selecting
the appropriate link in the Contents.
Principles of Decision Making
A1340: Standard of proof - balance of
probability
Evidence should be considered on the balance of
probabilities and
if the evidence is inherently improbable in
the circumstances. This is not the same as "beyond
reasonable doubt", the standard test for proof in criminal
trials.
A1341: Balance of probability
Balance of probability involves deciding if it is more likely
than not that an event occurred, or that an assertion is true.
It doesn't mean that the claimant can be given the benefit of
the doubt.
If the evidence is contradictory you should decide if there is
enough evidence in favour of one conclusion or the other to
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show which is the more likely.
You may decide on the basis of findings made on the
balance of probability or may find that there is not enough
evidence to satisfy them about findings one way or the
other.
A1392: Inherently improbable evidence
You may decide that a claimant’s statement is inherently
improbable. This is where it is very unlikely that what has
been asserted can be true.
Good Reason
K2004: Good reason not defined in legislation
Good reason is not defined in legislation. You should take
into account all relevant information about the claimant’s
individual circumstances and their reasons for any failures
when considering whether to sanction a claimant.
K2005: Onus on claimant to show good reason
Claimants will be given the opportunity to explain why they
have not complied with requirements and it will remain the
responsibility of the claimant to show good reason for any
failure and provide information and evidence as appropriate
to explain why they have not complied.
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K2006: Situations where claimant can be
excused work related activities
Legislation provides for situations where the claimant can be
excused their work related activities. In those circumstances
the claimant would not have to show good reason.
K2007: Personalised requirements
Any work-related requirements placed on claimants should
be personalised according to their needs and circumstances
taking into account any restrictions. A work coach should
have provided adequate information and support to ensure
the claimant can understand and meet those requirements.
K2021: The 'reasonable' test
Good reason is not defined in the law, but ‘good cause’ and
‘just cause’ are considered in case law. It includes facts
which would probably have caused a reasonable person to
act as the claimant did. The principles established are
equally applicable to good reason.
K2022: Establishing the key facts
You should establish facts which would probably have
caused a reasonable person to act as the claimant did by
establishing three key points:
What would it be reasonable to expect someone to do
in the particular circumstances?
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What did the claimant do that was different to the
required action?
What were the claimant’s reasons for their action?
K2023: Consideration of all the facts and
evidence
The general rule for taking each incidence on its own merits
and considering all the facts and evidence should be
applied. Consideration of all the evidence should be made
on the balance of probabilities and whether the evidence is
inherently improbable in the circumstances.
K2041: Previous failures
Each case should be looked at on its individual merits
though past behaviour can be taken into account. If the
claimant has a record of previous failures, you may consider
that those failures impact the credibility of the evidence
presented to support the claimant’s reasons for a current
failure.
K2052: Considering all the individual
circumstances of the case
In all cases you should consider all the individual
circumstances of the case when considering whether the
claimant can show good reason.
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K2062: Domestic violence
Claimants who are forced to leave or refuse employment
because of threatened or actual domestic violence from an
estranged family member are to be treated as having good
reason for so doing.
K2073: Mental health
As well as giving consideration to those claimants who have
a clinically diagnosable mental health condition, you should
consider whether a claimant who has no diagnosed
condition may be temporarily distressed by particular
circumstances that could worsen or precipitate mental ill
health.
K2091: Homelessness
Being homeless can reasonably influence a claimant’s ability
to maintain their performance in a job at a sufficient level to
warrant keeping that job.
K2093: What being homeless can mean
Homeless includes:
sleeping rough
sleeping in friends homes
staying in temporary accommodation
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staying in supported accommodation, for example a
hostel.
K2112 (note 2): Domestic situations
Where crises arise unexpectedly you should give careful
consideration when deciding whether a claimant can show
good reason and take into account in particular the nature of
the crises and what is reasonable in the individual’s
circumstances. Examples include - a break up of the family,
a domestic emergency, homelessness.
In particular, you should consider what is reasonable
behaviour expected by a reasonable person in a working
situation, for example how would someone in work react in a
similar situation.
K2116: Claimant's condition or personal
circumstance
You must take into account when deciding good reason any
condition or personal circumstance of the claimant which
shows that a particular employment would be likely to cause
significant harm to the claimant’s health.
K2117: Evidence of significant harm to health
The best evidence is confirmation from the claimant’s doctor
that the employment is likely to cause significant harm to the
claimant’s health. You should check any medical evidence
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provided to make sure that it is relevant to the type of
employment in question.
K2118: Medical evidence not available
If medical evidence is not available, the facts may still allow
you to decide that the claimant had good reason. You can
accept good reason, without requesting medical evidence,
where the employment itself or the place the claimant would
have had to carry out the employment would have made the
medical condition worse.
K2122: Significant harm to claimant's health
The employment must be likely to cause significant harm to
the claimant’s health.
K2271: Personal and domestic circumstances
A claimant's personal or domestic circumstances may have
become so urgent that they may have good reason for
leaving a job without having looked for other employment.
But, if there was no urgency, the claimant should have taken
all reasonable steps to avoid leaving, or they will not have
good reason.
K2272: Moving home
If claimants moved home to a place beyond the normal 90
minutes daily travelling distance either way of their
employment, that alone does not give them good reason for
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leaving. But you will need to find out the reasons for the
move. If there was some urgent personal reason for moving,
(for example they lost their accommodation) they may have
good reason for leaving.
K2274: Evidence required about moving home
In all cases where a claimant has left employment because
of moving home, you will need to establish the reason for
the move, the date of the move, the date on which the
claimant gave notice to end the employment, the date on
which the claimant first knew they would be moving, and
what efforts the claimants made to find employment in the
new area before leaving their job.
K2275: No attempt to find employment before
moving
Although the reasons for the move may sometimes seem to
amount to good reason, the claimant may fail to show good
reason overall because, for example, they did not make any
attempt to find a new job in the new area before moving
despite having plenty of notice of the move.
Failure to Take up Paid Work or
Apply for a Vacancy
K3051: Claimant fails to take up or apply for
paid work
Legislation states that where a claimant fails without good
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reason to comply with a requirement imposed by the
Secretary of State under a work search requirement to apply
for a particular vacancy for paid work a sanction can be
imposed.
Also, where a claimant fails without good reason to comply
with a work availability requirement by not taking up an offer
of paid work a sanction can be imposed.
K3057: Refusal or failure
Claimants may not actually refuse or fail to apply for or
accept paid work for it to be a failure to comply. A failure to
comply includes… behaving in such a way that they lose the
chance of getting the vacancy. For example they may make
statements which, although reasonable in themselves, are
intended to put the prospective employer off.
These actions amount to refusals or failures to comply.
However, if any statement was reasonable in the
circumstances, and it was not made only to put the employer
off, the claimants have not refused the vacancy.
K3058: Claimants change their mind
Claimants who refuse or fail to apply for or accept a vacancy
for paid work may change their minds and apply for or
accept it before it has been filled. In such cases claimants
have not refused or failed to apply for or accept the vacancy.
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K3059: Vacancy suspended or withdrawn
A sanction can be imposed regardless of whether the
vacancy is still “open”. If the claimant changed their mind
and applied, you can take account of that and decide not to
sanction. If they change their mind, but can't apply because
the vacancy has been either suspended or withdrawn, his
change of mind will not assist them and they can still be
sanctioned.
Loss of Paid Work or Pay through
Misconduct
K3067: When a sanction can be imposed for
misconduct
A sanction should only be imposed where the claimant:
acted or failed to act as alleged
behaved in such a way that it amounted to
misconduct; and
lost paid work or pay through that misconduct.
K3069: What is misconduct
The word "misconduct" is not defined in Social Security
legislation, but it suggests an element of blameworthiness. It
means such misconduct as would persuade or oblige a
reasonable employer to dismiss employees because,
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considering their misconduct, they are no longer fit to hold
their employment. Misconduct is conduct which is
connected, but not necessarily directly, with the
employment.
K3070: Claimant's actions must be
blameworthy
The claimant is guilty of misconduct only if their actions or
omissions are ‘blameworthy’. This does not mean that it has
to be established that the claimant did anything dishonest or
deliberately did something wrong, serious carelessness or
negligence may be enough.
K3071: Poor performance and inefficiency
Everyone makes mistakes or is inefficient from time to time.
So, for example, if a claimant is a naturally slow worker who,
despite making every effort, cannot produce the output
required by their employer, they are not guilty of misconduct
even if the poor performance may justify their dismissal.
K3072 Point 3: What constitutes misconduct
The misconduct has to have some connection with the
claimant’s employment. It does not have to take place during
working hours to count as misconduct.
K3072 Point 7: What constitutes misconduct
Breaking rules covering personal conduct might be
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misconduct, depending on the seriousness of the breach. A
breach of a trivial rule might not be misconduct.
K3081: Onus of proof in misconduct cases
The person who alleges the claimant has committed
misconduct must prove it. The Decision Maker determines
what is misconduct.
K3082: Balance of probabilities in misconduct
cases
Usually Decision Makers decide questions of fact on the
balance of probabilities. But in misconduct cases the
probability should be high because it may bring disgrace on
the claimant. Before a sanction is imposed you should be
substantially satisfied that the allegations which are made
are well founded.
K3083: Evidence in misconduct cases
In misconduct cases you will usually have statements by the
employer describing the claimant's alleged acts or
omissions, and statements by the claimant replying to the
employer's allegations.
K3086: Giving the claimant a chance to
comment
Before imposing a sanction In misconduct cases you must
be satisfied that the claimant has been given an opportunity
to comment on all the statements made against them.
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K3093: Reports of court or employer's
hearings
Where claimants have been convicted of offences in
England and Wales, or Scotland, you should accept that
they have committed these offences, unless the claimant
can prove the contrary. So a conviction should be treated as
strong evidence that a person did commit the offence,
though it is not conclusive. The decision making authorities
must still decide whether that offence is misconduct and the
misconduct caused the claimant's loss of employment.
K3094: Evidence of a conviction
A statement from the employer and claimant about the
conviction may be sufficient evidence.
K3097: Hearsay and eye-witness evidence
Hearsay evidence is acceptable, but its value must be very
carefully considered. You should ensure that, where
possible, the most direct evidence, generally of eye-
witnesses, is obtained.
The allegations against the claimant can then be properly
tested. Direct evidence is particularly important where the
claimant denies the facts which are alleged to amount to
misconduct.
The surrounding circumstances may, however, be just as
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convincing as eye witness evidence.
K3106: Misconduct outside employment
Misconduct which happened outside working hours and was
not in the course of the claimant's employment can be
misconduct within the meaning of the legislation. It may
cover both criminal and non-criminal acts.
K3112: Failure to follow rules and regulations
In many employments there are rules or laws about the work
and the way it is done for example, safety rules and
licensing laws. Breaking such a rule is misconduct, unless it
is very trivial.
K3172: Use of bad language
The use of bad language may be misconduct, depending on
the place and the people present. The use of bad language
in conversation with others who are using it, and if it cannot
be overheard, is not misconduct. But its use in
circumstances when it is known, or might be expected, to
give offence to others is misconduct.
K3186: Whether misconduct caused the loss
of paid work or pay
For a sanction to be imposed it must be proved that the
claimant lost pay or paid work because of misconduct.
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K3189: Claimant continued working for some
time after the misconduct
It is immaterial that the claimant was allowed to continue
working for some time after the act of misconduct (or the last
such act) if there is an adequate explanation. For example
the misconduct was being investigated.
K3190: No adequate explanation for the delay
If there is no adequate explanation for the delay it may be
reasonable to infer that it was decided at the time not to
discharge the claimant and that the eventual loss of
employment was really due to some other cause.
K3191: Misconduct must be an immediate and
substantial reason for the loss at that particular
time
The claimant's misconduct need not be the only cause, or
even the main cause, of the loss of employment, provided it
is an immediate and substantial reason for the loss at that
particular time. It is irrelevant that there are or may have
been other contributory factors.
Leaving Paid Work or Losing Pay
Voluntarily
K3203: Meaning of voluntarily
Claimants have voluntarily left their employment if they
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brought it to an end by their own acts and of their own free
will.
K3241: Changing the terms and conditions of
employment
If employers tried to impose a change in the terms and
conditions of employment which makes them a lot less
favourable than before without agreement they may have
ended the employment by breaking the contract of
employment.
If claimants left their employment in such circumstances,
they will not have left voluntarily. Employees who are
dismissed for refusing to accept such changes have not left
voluntarily.
K3251: Claimants who volunteer for
redundancy
A claimant has not voluntarily left employment if they
volunteered or agreed to be made redundant and:
was dismissed by the employer or
left on a date
agreed with the employer following an agreement on
voluntary redundancy, or
had been laid off or on short-time for four weeks or six
weeks out of 13 and asked the employer for a
redundancy payment.
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K3252: Meaning of redundant
Meaning of redundant - the claimant could only volunteer or
agree to be made redundant if there was a redundancy
situation as defined in employment legislation. You can
accept that there was a redundancy situation if the claimant
had received a statutory redundancy payment.
K3253: Redundancy situation as defined in
employment legislation
There was a redundancy situation as defined in employment
legislation if the main or only reason for the dismissal was:
the employer stopped or intended to stop running
the business
the business needed or expected to need fewer
employees
the business did not need or expected not to need
any employees to carry out a specific type of work.
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