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OSC instructed in challenge to exclusion of workers from sick pay and CJRS during Covid-19 pandemic


Ben Collins QC, Eleena Misra, Nadia Motraghi and Rachel Owusu-Agyei are instructed by Leigh Day for the Claimants.

The challenge, issued on 6 May 2020, is brought on behalf of IWGB and its low paid members who argue that the government’s changes to the Statutory Sick Pay (‘SSP’) regime and implementation of the Coronavirus Job Retention Scheme fail to protect limb b workers, almost all of whom do not have access to those schemes. It is also argued that the government’s actions discriminate against people from BAME backgrounds and women, who are more likely to be vulnerable, in low paid work and are disproportionately affected by Covid-19.

The definition of worker status is found at s.230(3)(b) of the Employment Rights Act 1996. Workers who do not have a contract of employment but work under another contract where they, “undertake to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual” are referred to as limb b workers. SSP is only available to employees who work under “a contract of service or in an office…” (s.163 Social Security Contributions and Benefits Act 1992). As such, limb b workers are not entitled to SSP.

Even for those who are employees, an individual must earn a minimum of £120 per week to be eligible for SSP, and the amount available – £95 per week – is too little for many people to survive on.

As a result of the pandemic, the government has decided to amend the existing SSP regime by providing state funding of employers’ liability for SSP and disapplying the 3-day waiting period under ss39-44 Coronavirus Act 2020. The union argues that the decision to amend the scheme for SSP as a response to the pandemic without including limb b workers in the scheme, raising the level of SSP from £95 per week and removing the lower earnings limit is unlawful.

Furthermore, the government’s Coronavirus Job Retention Scheme is only available to those paid via PAYE, largely excluding limb b workers from its protection. The union argues that the failure to provide equivalent income protection to limb b workers is also unlawful. The Self-Employed Income Support Scheme is not a suitable alternative because its eligibility criteria mean that many limb b workers are ineligible, indeed many will already have fallen into destitution given that payment under that scheme is delayed. The availability of Universal Credit welfare benefits is not a suitable alternative in light of the fact that applications are complex and there are a range of barriers to access, for example by reference to immigration status.

The unlawfulness of these decisions is challenged as a breach Article 14 of the European Convention on Human Rights (non-discrimination), read with Article 8 (right to private and family life) and Article 1, Protocol 1 (right to peaceful enjoyment of possessions). It is also argued that the government has acted in breach of the public sector equality duty at s.149 of the Equality Act 2010, and that its decisions that discriminate against BAME people and women are in breach of EU equality law.

Claimant Ahmad Adiatu, an IWGB member, says:

“I started working as an Uber driver a few years ago thinking it would be enough to provide for me and my family, but now with the outbreak of the Covid-19 pandemic it has become impossible. As an Uber driver, costs such as car maintenance, insurance and congestion charge can reach over £1,000 a month. Now I have no money, so can’t even renew my private hire license. With virtually no income coming in, we’ve been struggling to get by and we are behind on our rent. My wife, who is now breastfeeding, has even had to sell her phone in order to buy food for herself and the children. I’ve always worked hard and provided for my family. I just want to be able to continue doing that.”

IWGB General Secretary Dr. Jason Moyer-Lee says:

“Statutory sick pay has never been more important, for both low paid workers as well as for society more generally, than it is now.  So it must be extended to cover more people and set at a rate which actually allows workers to go off sick and follow public health advice.  Similarly, it is crucial that the shortcomings of the Self-Employed Income Support Scheme are fixed so as to avoid further unnecessary destitution.  It is unfortunate we have had to litigate to make these points, but this government has left us and our members with no choice.”

Rosa Curling, solicitor from law firm Leigh Day said:

“It is vital, now more than ever, that the incomes of gig economy workers are protected, ensuring these hard-working people are not left destitute during this time of crisis. Current measures put in place by the government do not go far enough. While employees are guaranteed 80% of their salary up to a cap of £2500 per month, gig economy workers do not have the same assurances. This lack of protection disproportionately affects those in BAME communities and women. Urgent action must be taken to address this omission.”

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