In Ahmed Adiatu & Independent Workers Union of Great Britain (IWGB) v HM Treasury [2020] EWHC 1554, an Uber driver and his union made an unsuccessful claim for a judicial review of the government’s COVID-19 support measures for lower-paid workers.

Mr Adiatu and the IWGB claimed that some of the government’s decisions in relation to the treatment of workers in the context of the Coronavirus pandemic are discriminatory and contrary to the European Convention on Human Rights (‘ECHR’), EU law and/or were taken in breach of the public sector equality duty under s.149 of the Equality Act 2010.

Applying for judicial review, they asked the Court to require the government to review and remake its decisions.

Their key points were:

  • As a worker, known as a ‘limb b worker’, an Uber driver has some similar rights to employees but as they are not subject to PAYE and they are unable to be paid under the Coronavirus Job Retention Scheme (‘JRS’).
  • Mr Adiatu, a Nigeria Uber driver, has leave to remain in the UK on the condition that he has no recourse to public funds and therefore was not entitled to universal credit. Grants under the JRS do not counted as public funds.
  • Although the government amended the Statutory Sick Pay (‘SSP’) as a result of the crisis, it too excludes limb b workers.
  • The Self Employed Income Support Scheme (SEISS) is not available to workers who have moved from employment to self-employment since April 2019. Even if available, the SEISS provides significantly worse protection to limb b workers than is provided to employees under the JRS. 
  • Women and Black, Asian and Minority Ethnic (BAME) workers are treated less favourably than men and white workers as they are likely to be low-paid and to have limited financial resources with no access to occupational sick pay. BAME are more likely to suffer serious ill-health if they risked working and not socially isolating. This is indirect discrimination on grounds of sex and race, contrary to EU law.
  • A House of Commons Library briefing paper, no 8898, dated 20 April 2020, states that the Women's Budget Group found that women make up 69% of low earners, 54% of temporary employment, 54% of workers on sub-zero hours contracts, and 59% of part-time self-employment. In a report dated March 2020, entitled "Protecting Workers' Jobs and Livelihoods – The Economic response to coronavirus", the TUC said that women, those in insecure work and younger and older people are most likely to miss out on SSP because they earn less than the Lower Earnings Limit for NICs (LEL) of £120 per week.

The government's legal representative argued that the case was not about "the broad political question of how the government should respond to the needs of particular groups as a result of the pandemic. There is no legal answer to that question, which raises open-ended policy choices to which there is no right answer".

It observed that the government's policies to address the pandemic were, "worked up in a matter of days, under huge pressure, in order to respond to an unprecedented public health and economic emergency" and that they "involve enormously important macro-economic and macro-political judgments." Arguing that "it is difficult to conceive of circumstances where the margin of discretion available to the government should be wider".

The Court of Appeal acknowledged that there was force in the goverment's submission, although it is not suggested that its decisions are immune from legal scrutiny.

The Court reviewed the timeline of the pandemic and the various points finding that:

  • The decision to confine the JRS to employees and other workers within the PAYE system was plainly justified.
  • The decision to exclude limb b workers outside the PAYE system from eligibility for SSP has a reasonable foundation.
  • The rate of SSP itself does not place women or BAME employees at a particular disadvantage.
  • The decision not to extend SSP to limb b workers cannot validly be criticised on the basis that it was not a proportionate means of achieving a legitimate aim.

The court said, 'Standing back, there was an almost infinite range of measures that the government might have introduced to cope with the pandemic. The aims of the measures under challenge were legitimate since they were rational and were all directed towards providing assistance to employers and employees in response to the crisis, and the means adopted were appropriate to achieve the aims that were selected."

The claimants' challenges were all rejected.

Comment

The court noted that it was ‘clear from the evidence that LEL for SSP places women at a particular disadvantage’ and that statistical evidence on BAME workers was recorded as being ‘very thin’ (para 162). The latter is unsurprising as data on ethnicity is not routinely collected by either employers or government. Further, as noted by the court, it is difficult to gather such evidence when a case is brought to court in such a short time. 

It is possibly not a coincidence that the goverment has just published a paper by Public Health England, COVID-19: understanding the impact on BAME communities which highlights that Covid economic issues will disproportionately affect those people who are from lower socio-economic backgrounds and of people from black, Asian and minority ethnic groups.  

Links

COVID-19: Government support tracker
This tracker covers measures announced by the government to support individuals and businesses and includes a full section on Statutory Sick Pay (SSP).

COVID-19: Coronavirus Job Retention Scheme
Coronavirus Job Retention Scheme: a cash grant that is designed to allow employers to retain staff who would otherwise be laid off.

COVID-19: Self-Employment Income Support Scheme (SEISS)
COVID-19 Self-Employment Income Support Scheme (SEISS). HMRC's claims portal for the second grant opens in August 2020. 

Coronavirus Self-Employment Income Support Tool
Coronavirus (COVID-19) Self-Employment Income Support Scheme (SEISS) tool. Use this to see whether you meet the main qualifying conditions to allow you to claim under the UK government's Coronavirus Self-Employment Income Support Scheme. 

National Insurance: Rates

External link

Ahmed Adiatu & Independent Workers Union of Great Britain v HM Treasury [2020] EWHC 1554

Public Health England: COVID-19: understanding the impact on BAME communities

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