The Divisional Court handed down judgment on Monday 15 June in the case of Adiatu and the Independent Workers Union of Great Britain v HM Treasury. This is a significant case, in which the Claimants challenged the Government’s Coronavirus Job Retention Scheme on the basis that it failed to make provision for “limb b workers”, in breach of their human rights. They also challenged the Government’s alleged failure to reform Statutory Sick Pay in the context of the pandemic, so that it (i) applied to limb b workers; (ii) was payable at a higher rate; and (iii) no longer had a lower earnings limit. The latter two challenges to SSP were brought on EU law grounds (as indirect sex/race discrimination), and the former was a human rights claim. FInally, the Claimants alleged that the Government had failed to comply with the Public Sector Equality Duty (“PSED”) in respect of all those matters.
The Divisional Court (Bean LJ and Cavanagh J) dismissed the claim. In so doing, they made a number of significant findings. Among other matters, they held that (i) the standard of justification applying both to the human rights and EU law elements of a claim of this kind was one where a wide discretionary margin of judgment was appropriate; (ii) the (uniform) rate at which a benefit such as SSP was payable could not amount to a “provision, criterion or practice” for the purposes of an indirect discrimination challenge; (iii) the PSED did apply to processes followed by a Government department in preparing to lay a statutory instrument before Parliament (as would have been required, for example, in relation to the rate of SSP); (iv) the PSED did not apply to decisions given effect by primary legislation. This is an important point, which has not been previously dealt with head on in the decided cases; and (v) the PSED applies to the implementation of measures that the public authority decides upon. It does not apply to measures that were never within the serious contemplation of the public authority in the first place. This is another point which has not previously been addressed head on in the decided cases.