The case of R (On the Application Of Adiatu & Anor) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) concerned challenges certain decisions made by the Treasury in relation to the availability of support by way of Statutory Sick Pay (“SSP“) and the Coronavirus Job Retention Scheme (“JRS“). The claimant was a Nigerian Uber driver who did not have recourse to public funds. He was severely affected by the lockdown rules and was unable to continue to afford his private vehicle licence renewal fee causing him to be unable to work.

He sought to argue that the Treasury’s decision not to include gig workers in the JRS or to amend the SSP scheme to include such workers was unlawful on the grounds that this amounted to discrimination on the grounds of race and/or sex, contrary to the Human Rights Act 1998, and Article 157 of the Treaty on the Functioning of the European Union. It was also argued that the Treasury had failed to comply with Public Sector Equality Duty (“PSED“) under section 149 of the Equality Act 2010.

In respect of all three grounds, the Court went to some length to underline the margin of discretion that was to be afforded to the Defendant. It pointed out that the JRS, SEISS and other 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’ and that they ‘involve enormously important macro-economic and macro-political judgments’. As such, it agreed with the Defendant that ‘it is difficult to conceive of circumstances where the margin of discretion available to the Government should be wider’.

The human rights claim

The Claimant asserted that the decision violated the prohibition on discrimination in Article 14 of the European Convention on Human Rights read with the protection of property in Article 1 of the First Protocol to the Convention. The discrimination complained of arose from the fact that the JRS and SSP were available only to employees and not to gig workers such as the Claimant.

The Court held that the fact that JRS was intended to be a payment to employers to support continued employment, as evidenced by the fact that payments are made to the employer and not the employee, showed that the fundamental aim of the scheme is inapplicable to relationships other than employment. It was also necessary for swift assistance to be put in place and so 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 such, the decision to confine the JRS scheme to those within the PAYE scheme was justified.

Further, to extend SSP to gig workers would require a fundamental redesign of the system at a time when the scale of the problem combined with the urgency of the crisis justified a bright line solution.

The EU law claim

The Claimant argued that women and BAME workers are more likely to be low-paid and have no access to occupational sick pay. Against this background, the low rate of SSP meant that such workers feel compelled to go to work even if experiencing symptoms of coronavirus or in other circumstances where they should be self-isolating.

Further, BAME workers were more likely to suffer poorer outcomes when infected with coronavirus and so setting a minimum rate of earnings to qualify for SSP and excluding gig workers from SSP amounted to indirect discrimination which could not be justified.

The Court held that the rate of SSP applied to everyone equally and so could not amount to a provision, criterion or practice (a “PCP”) which places certain categories of workers at a particular disadvantage. Only the requirement for access to the benefit could be considered to be a PCP.

As to that, the minimum earnings threshold was considered to be a PCP with an adverse impact on women and BAME workers. The exclusion of gig workers from SSP was also a PCP with an adverse impact on BAME workers. However, both PCPs were a proportionate means for achieving a legitimate aim in line with the decision on the human rights ground.

Public Sector Equality Duty

The Court was satisfied that the PSED had been complied with in this case. However, the interest in the judgement lies in the Court’s discussion of several questions as to when the PSED will apply.

The Court considered whether the PSEDs apply to decisions that are given effect by delegated legislation. It held that it does in line with Court of Appeal authority on the point.

However, it held that it does not apply to decisions that are given effect by primary legislation. The court considered that it would be a breach of Parliamentary privilege and the separation of powers for a court to find that the procedure that led to legislation being enacted was unlawful. The consequence of such a finding would be that the primary legislation itself would be ultra vires and void, which the court has no power to decide.

Finally, it considered whether the PSED imposes a duty on a public authority only to have regard to the equalities implications of the decision that it is actually taken, rather than those alternative options that might have been followed instead. The Court held the duty only extends to decisions actually taken. Likewise, the fact that the PSED duty is ongoing does not mean that a public authority must constantly conduct assessments in relation to a wide range of other options that it could, but did not, adopt.