The High Court is today hearing a case brought by two Uber drivers and the Independent Workers’ Union of Great Britain (IWGB) over HM Treasury’s alleged failure to protect low paid and precarious workers during the coronavirus pandemic.
It focuses on workers in the gig economy who qualify for the Self-Employed Income Support Scheme (SEISS), rather than the Coronavirus Job Retention Scheme (CJRS) which the claimants argue constitutes “significantly” better income protection. In particular:
- There has been “unacceptable delay” as the SEISS was only introduced this month
- It excludes workers that became self-employed after 6 April 2019
- It excludes those who derive less than half their income from self-employment
- It does not cover ongoing overheads that most self-employed workers have
- It covers fewer months than the CJRS.
The claimants argued that the current statutory sick pay (SSP) regime discriminates against women, black, Asian and minority ethnic workers and individuals in the gig economy. They also argued that the exclusion from the CJRS of “limb (b)” workers – the category of self-employment where the worker is entitled to basic employment rights such as holiday pay – is discriminatory.
The IWGB also challenged the government’s adherence to the Public Sector Equality Duty. In his argument, Ben Collins QC, described the government’s attempt to carry out an Equality Impact Assessment under the Public Sector Equality Duty as “a box-ticking exercise” which – even when acknowledging the “need for speed” under the pressure of the pandemic – was exemplified by documents’ inclusion of pro forma content.
Julian Milford QC, for the government, argued that there are important differences between those on pay-as-you-earn and those who are not. Those outside PAYE make annual tax returns based on their profit, not their income. He said that the two groups are not in an analogous situation and that the CJRS was designed for those on PAYE and it could not be adapted for the self-employed because HM Revenue and Customs could never know what was owed to an individual.
“HMRC can’t tell who is and who isn’t a limb (b) worker. They can’t distinguish limb (b) workers from the purely self employed… so it would be reliant upon employees to self declare.”
Collins argued that the fraud relating to furlough and universal credit had been widely reported but Milford said that the fraud risk for allowing non-PAYE workers access to the CJRS was of a completely different order.
“The line has to be drawn somewhere and the logical place to draw that is whether or not you’re inside or outside PAYE,” said Milford.
Claimant Ahmad Adiatu, a member of the IWGB, told the press: “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 licence. 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 Jason Moyer-Lee explained: “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 SEISS 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.”
According to the TUC at least one in 10 adults work in the gig economy work – around 4.7 million people in the UK.