Following an application for judicial review of the decision to exclude “limb b” workers from the Coronavirus Job Retention Scheme and Statutory Sick Pay, the High Court has ruled in R (on the application of Adiatu and anor) v Her Majesty’s Treasury that the provisions introduced by the government were not unlawful. 

Basic facts

Mr Adiatu, who is from Nigeria, was granted leave to remain in the UK but with the requirement that he should have "no recourse to public funds.” He found work as a self-employed Uber driver, but as a result of the lockdown to curb the spread of coronavirus (COVID-19), he suffered a dramatic loss of income. Although he received a payment under the Self-Employed Income Support Scheme (SEISS), his financial situation remained severe.

As an Uber driver, he was deemed to be a worker following the decision of the Court of Appeal in Uber BV v Aslam (see weekly LELR 608) within the scope of section 230(3)(b) of the Employment Rights Act 1996. As such, he was entitled to be paid the minimum wage and to have his working time calculated according to the Working Time Regulations.

Claims brought before the High Court 

Along with his union, the Independent Workers’ Union of Great Britain, Mr Adiatu argued that it was unlawful to exclude “limb b” workers from the scope of the Coronavirus Job Retention Scheme (CJRS) and Statutory Sick Pay (SSP).

He also sought a declaration, among other things, that the failure to remove the lower earnings limit (LEL) from SSP was discriminatory under EU law; and/or was in breach of the public sector equality duty under section 149 of the Equality Act 2010. 

Decision of High Court

The High Court held firstly that the decision to exclude “limb b” workers not paid under the PAYE system was justified. As a taxpayer-funded employment support programme on a vast scale, created in circumstances of the utmost urgency to help millions of furloughed employees keep their jobs, the Treasury 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.

As for the decision to exclude “limb b” workers from SSP, the Court held the costs of doing so would have been significant, not least because it would have required a fundamental rewrite of the system. In addition, the information needed to ascertain whether someone was a “limb b” worker as opposed to a self-employed worker was not readily available. It therefore concluded that it was not practicable to include these workers within the SSP provisions, given the scale of the problem and the urgency of the crisis.

In addition, given the almost infinite range of measures that the government might have introduced to cope with the pandemic, the Court also rejected the argument that the provisions introduced were discriminatory. Instead it held that the aims of the measures were legitimate as they were aimed at helping employers and employees respond to the crisis and the means adopted to achieve them were appropriate.

Finally, it rejected the argument that the government had breached its duty under section 149 of the Equality Act. As it would have required primary legislation to remove the LEL, it was therefore a matter for Parliament and not the government. It could not therefore be applied to an argument that the government should have made the decision to remove the LEL from SSP.

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