COVID-19 needs no introduction. Now labelled a pandemic, it is dominating news stories worldwide. Italy is in lockdown, France and Spain are rapidly heading the same direction, the US has banned travel from Europe and UK supermarkets are experiencing a wave of hamsterkauf. One thing is clear – despite the government’s claims of a contain and delay action plan, coronavirus is spreading.

The outbreak has, in many ways, become reminiscent of wartime scenarios – with toilet roll rationing and restrictions on public events among the most prominent responses. But it has also revealed deep inadequacies in our employment law system, shining a new light on the stark inequalities between the rights of different groups within our workforce.

The issues impacting workers largely boil down to employment status. The definitions of employee, worker and self-employed, along with their respective packages of rights (or lack thereof) have made headlines in recent years. High-profile business models like those employed by UBER and Deliveroo brought the distinction between self-employed and worker, and sick pay and holiday pay issues, into the public eye.

More recently, Ken Loach’s powerful Sorry We Missed You took these concerns to the big screen – making the daily financial struggles faced by many gig economy workers a part of popular culture. These types of contracts are often described as precarious, and what surer a way to tip an unstable situation over the edge than a pandemic.

Sick pay levels are dependent on a worker’s employment status and their contract. In the pre-coronavirus UK, workers who earn at least £118 per week are entitled to statutory sick pay (SSP) from their fourth day of absence from work due to illness This amounts to just £94.25 per week – or approximately a quarter of the national living wage.

It is also one of the worst rates in Europe. This is a dismal state of affairs for many workers, especially when compared to employees on contracts that afford them full pay for days taken ill. In the NHS, there were worries that contractors (cleaners, security guards) would be forced to take the risk and come into work rather than risk living off so little. The self-employed (including, for example, Deliveroo riders) are barred from SSP altogether.

Last week, Boris Johnson announced that eligible workers would be paid SSP from day one. That’s £18.85 per day – and still excludes the two million who earn below the threshold. Chancellor Rishi Sunak’s budget, meanwhile, included an eligibility for the self-employed to claim Employment and Support Allowance from day one, rather than eight (£73.10 a week, or £57.90 for under-25s). But he rejected appeals from the Trades Union Congress to make SSP more generous and extend it to every worker.

Sunak was challenged on this on BBC radio – and refused to say whether he would be prepared to live on just £94.25 per week. He also argued that those ineligible for Statutory Sick Pay could rely on Britain’s notoriously miserly welfare system. “We’ve strengthened the working of our welfare system,” Sunak said, “so that it works quicker, more responsibly and more generously for those people.”

Sunak claimed the government’s new rules were designed to discourage people coming into work when potentially infected. They are short-term measures (as Sunak said, “life will return to normal”): attempts to slow the spread of a pandemic and lessen its economic impacts. But the question remains: why are these people not normally discouraged from coming into work ill with day-one SSP?

Workers with dependents are another cause for concern. Whether or not parents can take paid time off to care for children in the case of school closures will be at employers’ discretion, and depend on contractual terms. This does not pose too much of an inconvenience for the accountant who can work from home for a fortnight as a precaution. But it is much harder to stack supermarket shelves or serve coffee from the comfort of your own living room.

From a health and safety perspective, coronavirus poses a higher risk to older, ill and disabled workers. Employers have enhanced health and safety obligations to these groups of workers, but the reality of conducting an adequate risk assessment for the uncertain impacts of the virus can be difficult. Despite Sunak’s pledge to give business rates relief and loans to smaller businesses, the knock-on financial hits of the outbreak (for both business and the self-isolating individual) mean that many vulnerable workers are still coming into work.

The government made some nods to employment law injustices in the budget. But it shouldn’t take the emergence of a novel virus for these minimal steps to be taken. It is only the mass characteristic of coronavirus that has brought these issues into focus – but they have been problems for years.

Inequalities in workplace rights are all too clear for precarious workers experiencing their own personal states of emergency – be that a couple of weeks off with flu or caring for a terminally ill spouse. It begs the question: will the government keep these extremely minimal and essential sick pay rights in place permanently for our most vulnerable? Or will it simply wash its hands of the matter?

Katie Barnes-Monaghan is an assistant editor at Thomson Reuters Practical Law.

Katie Barnes-Monaghan

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