Adiatu & Anor, R (On the Application Of) v Her Majesty's Treasury

Where emergency economic-support measures require rapid choices about public expenditure, delivery and fraud prevention, the executive is afforded a very wide margin of discretion. Excluding workers outside PAYE from a furlough scheme and statutory sick pay was justified where PAYE records enabled swift and verifiable payment, while other support was available.

For indirect discrimination, a uniform rate of statutory sick pay is not itself a provision, criterion or practice which creates a comparative disadvantage. Eligibility thresholds and PAYE requirements may be such provisions, but a governmental scheme may remain proportionate when its aims are legitimate and the means reasonably address an urgent crisis.

The public sector equality duty is procedural. It concerns the equality implications of measures actually adopted, not every alternative policy. It applies to executive preparation of delegated legislation, but not to promoting amendments to primary legislation.

The claimants, a private-hire driver who was a limb (b) worker outside PAYE and a trade union, sought judicial review of Treasury decisions made during the COVID-19 pandemic. They challenged the exclusion of most limb (b) workers from the Coronavirus Job Retention Scheme and statutory sick pay, the statutory sick pay rate, and the lower earnings limit for that benefit.

They alleged discrimination contrary to Article 14 read with Article 1 of the First Protocol to the European Convention on Human Rights, indirect sex and race discrimination contrary to EU law, and breach of the public sector equality duty under Equality Act 2010, section 149. The central issue was whether the emergency support measures and the process by which they were made were unlawful because of their effects on insecure, low-paid, female and BAME workers.

1. Permission was granted, but the judicial-review application was dismissed. The claim raised important issues, but none of the challenged decisions was unlawful.

2. Applying R (Stott) v Secretary of State for Justice [2020] AC 51, the court accepted that non-PAYE limb (b) workers and PAYE workers were analogous to some extent. The decisive issue was justification. In allocating public resources during an emergency, the court had to give very great weight to executive judgment. The status relied upon was not a suspect ground. The PAYE boundary enabled a scheme that could be delivered quickly, verified against existing records and protected against serious fraud. The Job Retention Scheme was also directed to preserving employment relationships. Its restriction to PAYE workers was plainly justified.

3. Statutory sick pay was a statutory benefit analogous to welfare benefits. Applying the manifestly-without-reasonable-foundation approach, it was reasonable not to redesign the whole scheme at speed for workers without payroll records, particularly where multiple engagements, calculation difficulties and fraud risk arose. The exclusion of non-PAYE limb (b) workers had a reasonable foundation.

4. The Divisional Court had jurisdiction to determine the EU-law challenges by judicial review and the claimants had sufficient standing. A uniform statutory sick-pay rate was not a PCP causing a particular disadvantage: it paid the same sum to every eligible recipient and was not a barrier to eligibility. By contrast, PAYE eligibility and the lower earnings limit were capable of being PCPs. The evidence established particular disadvantage to women from the lower earnings limit; the court assumed, without deciding, comparable BAME disadvantage and a BAME disadvantage from non-PAYE eligibility.

5. The EU-law challenges nevertheless failed. Government was entitled to a broad margin when selecting legitimate emergency social and economic measures. It could address non-PAYE workers through other schemes rather than extending statutory sick pay, and could retain the lower earnings limit to avoid further costs, perverse incentives and complex payroll changes.

6. The public sector equality duty applied to executive processes leading to delegated legislation, including statutory sick-pay regulations, but not to a decision requiring primary legislation to remove the lower earnings limit. The duty required due regard to equality effects of measures actually adopted, not unconsidered alternatives. The equality analyses and ministerial submissions showed sufficient regard to relevant equality impacts of the statutory sick-pay changes and the Job Retention Scheme.

not stated in the judgment.