Anyone working in, or advising colleges has learnt never to be surprised by the creativity of the disgruntled student. It appears from recent case law that the creative bent stays with them after they have completed their studies (R (C. Reilly and J Wilson) v Secretary of State for Work and Pensions 2012 EWHC 2292, 6 August 2012). Ms Reilly, an unemployed geology graduate who was in receipt of Jobseeker’s allowance, challenged as a breach of her human rights the requirement of that scheme that she should engage in unpaid work at a branch of Poundland. In her view, it amounted to the performance of forced or compulsory labour. The particular right invoked was the prohibition of slavery and forced or compulsory labour in Article 4 of the European Convention on Human Rights, which is subject to various exemptions, such as military service or work which forms part of normal civic obligations. Article 4 offers no definition of the term “forced or compulsory labour”.
The right enshrined in Article 4 has evolved from other Conventions, from which a definition can be garnered. In reliance on those Conventions, previous cases have concluded that forced or compulsory labour is “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (Van der Mussele (1983) 6 EHRR 163). That definition of course is tempered by the contemporary mores of democratic states.
The menace of penalty which prevailed for Ms Reilly was the threat of loss of her Jobseeker’s allowance. The judge however concluded that characterising such a scheme as analogous to “slavery” or “forced labour” was a “long way from contemporary thinking”. There was therefore no breach of Ms Reilly’s human rights.
Many institutions include “community service” amongst the penalties for student misconduct, such as litter picking. A failure to comply with the penalty will incur the menace of further disciplinary action and possible expulsion. Institutions can be confident that a challenge to that practice on human rights grounds can be resisted. I would however caution against campaigning for a return of the stocks........