News - OSC instructed in challenge to Coronavirus Bill exclusion of gig economy workers and very low paid

Employment & Discrimination - Ben Collins QC, Eleena Misra, Nadia Motraghi, Rachel Owusu-Agyei

The Coronavirus pandemic has led the government to take measures which are unprecedented in peacetime. The government has vowed to do “whatever it takes” to safeguard the British public, to reduce the spread of the Coronavirus and to protect the health service and front line staff, including spending in the hundreds of billions.

Measures announced to date include changes to the statutory sick pay regime set out in the Coronavirus Bill and the introduction of a Job Retention Scheme administered by HMRC which would cover 80% of an employer’s wage bill up to a maximum of £2,500 per month per employee, in order to allow employers to furlough rather than to dismiss their employees.

The Independent Workers Union of Great Britain (IWGB) argue that the Coronavirus Bill and Job Retention Scheme do not go far enough to protect working people, especially the low paid and those who are in more precarious forms of employment, such as the gig economy.

The government's proposed changes to the statutory sick pay regime fails to address:

  • the unavailability of SSP to any individual who do not have a contract of employment, including gig economy workers and others, in other words "limb b workers" under s230(2)(b) Employment Rights Act, nor an equivalent benefit to independent contractors and the self employed;
  • the unavailability of SSP to anyone earning less than £118 a week; or
  • the impossibility, even for those in receipt of SSP, of subsisting on as little as £94.25 per week.

In addition, the government's proposed Job Retention Scheme covers only those who have a contract of employment.

On Monday, IWGB sent a letter before action to the Treasury, contending the government's decisions are unlawful because:

  • They have failed to take into account relevant considerations and the decisions are irrational.
  • They amount to a breach of the Equality Act 2010 (“EqA”) amounting to unlawful discrimination on grounds of race and sex;
  • They amount to a violation of Article 14 ECHR read with Article 8 and/or Article 1 of the First Protocol (“A1P1”); and
  • They are in breach of the Public Sector Equality Duty at s. 149 EqA (“PSED”).

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

To read the media article from the Guardian, please click here.

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