EEA Nationals - 'Genuine and effective work' definition
The notes on this page are for EEA nationals and their family members who were resident in the UK on 31 December 2020.
What is genuine and effective work?
If you have not earned an average of £184 (in 2021/22) per week over 3 months, a benefits decision maker will need to consider whether your work is “effective and genuine” (or was effective and genuine if you are claiming as someone who retains worker status or self-employed status). You may need specialist help to put your case forward.
The decision maker will take into account all the relevant factors and come to an overall view. Some factors will be more relevant to employed workers and some are more relevant to self-employed people or small company owners. The factors include:
- Whether the work is or was regular or intermittent (regular work will be favoured). A zero hours contract can count as effective and genuine work if the person gets reasonably regular hours, but if work is only sporadic with long periods when the person’s services are not required it is less likely they will be accepted as a worker.
- The period of employment (in general longer periods would be favoured. However a short period of work with long hours that was terminated unexpectedly might also be perceived favourably).
- The intended period of employment at the outset (if the work was intended to be long term, but was terminated by the employer unexpectedly and/or the worker became unwell unexpectedly this would be taken into consideration).
- The number of hours.
- The level of earnings.
- The economic value of the work to the employer. This can include performing a useful role for a public sector or charitable organisation – it doesn’t have to mean profitable value. Economic value can be explained as an employer having a task that needs doing and they are prepared to pay someone to do it.
- Who is the employer and what is their line of business.
- Whether the person has a proper employment contract and entitlement to things like sick pay and holiday pay – especially if they belong to a team of employees with similar terms.
Other factors that will be considered
If the decision maker believes your work is on such a small scale as to be marginal and ancillary, they will conclude that it is not effective and genuine.
Voluntary work for no payment or material reward does not qualify. You don’t have to receive all of your payment in the form of money – for example, an au pair who receives accommodation, full board and a small cash wage might still be in effective and genuine work.
‘Cash-in-hand’ work might qualify in certain circumstances if there is evidence of the work taking place (e.g. payslips, some kind of work agreement). Even trafficked people who have carried out forced labour can be regarded as doing effective and genuine work if there is evidence of some kind of remuneration – perhaps partly in the form of food and accommodation.
Self-employment might take time to gather momentum and generate a useful amount of earnings – it is accepted that self-employed people will have to invest a lot of time and perhaps money building up their business, but there might come a time when the prospects of turning a profit are so remote that the activity will be seen as marginal and ancillary.