In the UK, the gig economy accounts for around 4.7 million workers. That’s 1 in 10 UK workers, and double what it was in 2016. According to the Office for National Statistics (ONS), these workers are also most at risk to die from COVID-19.
Despite this, there has been a significant lack of protection offered to these workers, both in relation to finance and health.
Now, on behalf of gig economy workers, the Independent Workers Union of Great Britain (IWGB), is launching legal action against the government. They argue that it has failed to safeguard these vulnerable workers, driving them into poverty, and posing “a major threat to public health”.
In the shadow of COVID-19, those who were previously viewed as “low-skilled workers” are now widely perceived as “key workers”. Many of these workers make up the gig economy, which includes everything from medical couriers, to cleaners and taxi drivers, all of whom provide vital services. However, this has not been recognised in the government’s COVID-19 care package. It seems that despite their value, even during the crisis, these workers are being overlooked and underpaid.
As a result, IWGB, have pointed to the insufficient income protection the government has offered these workers through its Self-Employed Income Support Scheme (SEISS). The Union has outlined that not only is there a significant delay to the scheme, given that it only comes into fruition in June, but that it also offers less to employees than the Coronavirus Job Retention Scheme (CJRS).
On top of this, those who became self-employed after 6 April 2019, are not eligible for the scheme. Those who receive less than 50% of their income from self-employment also do not qualify. Additionally, the Union has criticised the pitiful £95.85 per week offered up as Statutory Sick Pay (SSP), which includes the meagre £1.60 raise that came into action back in April. TUC also found that 1.87 million people do not even qualify for SSP, as they do not earn enough.
Legal action has now been filed against the government with the High Court, after it failed to address the Union’s concerns. IWGB argues that the government’s provisions are unlawful, as they disproportionately impact BAME and women workers. As a result, the provisions breach both Article 14 of the European Convention on Human Rights, and the Public Sector Equality Duty.
Represented by law firm Leigh Day, the Union sent a “letter before action” to HM Treasury on 23 March. The letter stated that all workers should be able to adhere to the government’s public health advice without fearing they will lose their livelihoods. Further to this, IWGB outlined that gig workers are more likely to be “economically vulnerable,” due to the insecure nature of their work. The Union also highlighted that workers should not have to choose between “destitution” and venturing into work when they are at high risk of contracting the virus and should be self-isolating.
Speaking about the inequality stemming from government provisions, Anna Dews from the Human Rights team at Leigh Day said: “The Covid-19 pandemic has created job insecurity and financial hardship up and down the country. The government has taken some important steps towards protecting large sections of the workforce facing financial uncertainty in the coming months. However, our client believes it has fallen short by neglecting those who are not deemed to be employees under employment law. This group of workers must be protected and supported too. We are challenging this failure on behalf of the IWGB as our client believes the government’s decision is discriminatory. Women, and members of the BAME community and people with underlying health conditions will disproportionately suffer”.
As well as exposing these workers to financial hardship, the government’s lack of action has exposed them to a higher risk of catching the virus too. The health and safety protections required by European law are currently being denied to gig workers, as they are not classified as “employees”. As a result, many are not being provided with PPE or testing kits. This even extends to courier drivers who transport testing samples which potentially contain the COVID-19 virus.
In a pre-action letter to the government, IWGB said: “Under EU law, which still applies, the relevant measures to protect the health of workers, including in conditions caused by this pandemic, should encompass and protect not only employees but also workers who, under UK law, are not defined as employees”.
It goes on to emphasise the risks of not providing sufficient safety measures to workers: “Many of the Union’s members work in areas which, without testing for infection and the provision of PPE, entail risk including risk to life and health for themselves and for their families. This, in turn, causes great anxiety for our members, their families and the public at large”.
However, it seems that responsibility is being shirked. Sarah Albon, Chief Executive of the Health and Safety Executive, responding to the letter, said: “As you will be aware, those working in the gig economy who are self-employed rather than workers have a general duty to manage risks to themselves and others that arise out of their work. We are confident that the health and safety framework provides the necessary protection for workers, including those on non-standard contracts, and have no plans to amend the legislation”.
The Union’s pre-action letter argues as part of its judicial review, that the government has not delivered in its “obligation to transpose health and safety directives from EU law into UK law”. In addition to this, it states that although UK health and safety law “only protects employees,” EU law protects workers further. This includes “the right to adequate Personal Protective Equipment (PPE), to all those classified as workers”.
Speaking about the importance of ensuring these protection measures are delivered, Dr Jason Moyer-Lee, General Secretary of the IWGB said: “Health and safety has never been more critical than it is now”. He added: “Until the end of the transition phase [scheduled to be the end of 2020] EU law still applies in the UK. We have written to the government and said [everyone] should be covered.Our members feel they have no protection. If they raise their concerns at work they fear they may be dismissed”.
To help secure funding for the judicial review, the Union is crowdfunding through CrowdJustice and will be represented by Ijeoma Omambala QC and Cyril Adjei of Old Square Chambers and Kate Harrison and Harry Campbell of Harrison Grant LLP.