High court rejects challenge over support for workers during coronavirus pandemic

15 June 2020, 19:12

A High Court challenge brought against the Government over its measures to protect jobs and support workers during the Covid-19 pandemic has been rejected.

The Independent Workers' Union of Great Britain (IWGB), along with one of its members, Ahmad Adiatu, who works as an Uber driver, argued that the Government's decision to exclude self-employed workers, such as those working in the gig economy, from its employee furlough scheme was "unlawful".

It also said that ministers should not have amended statutory sick pay, which stands at £95.85 per week, during the pandemic, without raising the level of the payment, removing the lower earnings threshold or including "limb (b) workers", those who are self-employed but provide a service as part of a business, such as Uber drivers, in the scheme.

But on Monday, Lord Justice Bean and Mr Justice Cavanagh ruled that the challenge should be dismissed.

In their judgment, the senior judges said: "The JRS is a taxpayer-funded employment support programme on a vast scale, created in circumstances of the utmost urgency to provide help to millions of furloughed employees by seeking to preserve their jobs at least during the worst of the crisis."

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The Government was entitled to "take the view that any system which took months to establish would be almost useless, and a system which involved officials making rapid decisions in very large numbers of individual cases while minimising fraud would be impracticable," the judgment says.

The judges added they are "satisfied that as a matter of law" and "applying the test of a wide margin of discretion" that the decision to confine the JRS to employees and others paid through the PAYE system - in which income tax is deducted from a salary - "was plainly justified".

They also said they were "entirely satisfied" that the decision to exclude "limb b workers" who are outside the PAYE system from being eligible for SSP has "a reasonable foundation."

The judgment also says: "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."

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Mr Adiatu, who is Nigerian, and has a wife and four children aged seven months to 12 years, saw his income decrease "dramatically" in March, the judgment says.

He could not afford to pay for his private licence renewal in April, which means he is unable to work and fallen into rent arrears. He recently received a payment through the government's Covid-19 programme for the self-employed, but the financial pressures on him "remain severe" it says.

In their ruling, the judges noted that the Covid-19 pandemic "has caused grievous loss of life and social disruption on a scale not seen in this country since the end of the Second World War" and that these effects "are not evenly spread throughout the population".

"The Claimants in this case focus on the financial effects on workers not in secure employment," they said, adding that it has "also become apparent" that coronavirus is "a far greater danger" to the elderly, that in most age groups men are more at risk than women, that the black and minority ethnic population has been "particularly badly affected" and that there are "regional and local variations" in the prevalence of the disease.

In papers submitted to the court, Ben Collins QC, barrister for the IWGB and Mr Adiatu, had argued that assistance provided by the Coronavirus Job Retention Scheme (CJRS) excludes the "vast majority" of so-called "limb (b) workers".

It means that the majority of these workers are more likely to be unpaid, to lose their contract and to try to continue working even if it risks their own health as well as that of their households and the public, he suggested.

He said the Government had introduced the Self-Employed Income Support Scheme (SEISS) but argued that this provides "significantly worse protection to limb (b) workers than is provided to employees under the JRS".

Mr Collins had argued the Government's decisions "in relation to the treatment of workers in the context of the pandemic" were discriminatory contrary to human rights laws and in breach of the Public Sector Equality Duty.

The challenge was opposed by the Government, which argued that 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".

The Government's barrister, Julian Milford QC, said in court papers: "It is difficult to conceive of circumstances where the margin of discretion available to the Government should be wider."

In a statement after the ruling, Dr Jason Moyer-Lee, IWGB general secretary, said: "The Government may have won the legal argument today, but the number of people excluded from the income support schemes, and the extent of unnecessary illness and death, demonstrates they have clearly lost the moral argument.

"Whether legally required or not, the low-paid workers we represent need better protection from this Government and we will continue to demand it."