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The scandal of courier drivers forced to pay fines to their employers if they are too sick to work has been receiving media coverage since March last year. The PM continues to come under fire for failing to regulate the so called gig economy and crack down on employers contriving self-employed status for workers in order to evade legal rights.

Workers in the gig economy typically receive no sick pay and are therefore forced to lose a day’s pay whenever they aren’t well. Shockingly some companies also fine workers who do not arrange their own cover. Such fines are often as high as £150 a day. The tragic death of the diabetic courier Don Lane is a sad if not surprising result of this cruel and dangerous culture. Don Lane, a 53 year old father, was a “self-employed” courier for DPD a company who deliver parcels for large household brands like John Lewis, M&S and Amazon. After missing three hospital appointments for fear of missing work Don Lane collapsed at the wheel of his van at the end of last year. By January 2018 he had died. He had worked for DPD for 19 years.

According to Diabetes UK more than 3 million people are diagnosed with diabetes in the UK. Another 850,000 people in the UK have undiagnosed type 2 diabetes. This is a sizeable part of our workforce. For most people managing their condition and living a full working life is entirely possible. The support of employers in providing support is essential. Diabetics who can manage their diet, exercise and medication have every opportunity to excel in the workplace. The gig economy and its reliance on zero hour contracts and lack of employment rights does not create an environment in which anyone can excel, especially those who require additional support.

A company who would prefer one of their drivers to collapse at the wheel, as Don Lane did three times, rather than attend an appointment for a life threatening illness has a particular resonance in Glasgow. The difference between the tragic bin lorry incident in which Harry Clarke passed out at the wheel killing six Christmas shoppers and injuring fifteen others was shocking however it is clear that the employer, Glasgow City Council, was not aware of his health status. DPD knew that Don Lane’s diabetes was impacting his safety, and the safety of the general public, and yet still put profit first.

It is worth noting that for those who work under a contract of employment this kind of treatment is illegal. People with diabetes, and other similar health conditions, are in most cases covered by the protections in the Equality Act 2010. This means that employers must not discriminate against them and, further, they must make reasonable adjustments so they are not unfairly treated. For a diabetic such adjustments would include being given time during a shift to take insulin or to attend medical appointments. But what is a person with diabetes whose employer insists they are self-employed and therefore not subject to the Equality Act to do?

The position of self-employed workers is generally that they are not protected by the Equality Act and that, therefore, companies benefiting from their labour are under no obligation to make adjustments for diabetic workers (or to pay them minimum wage or holiday pay). Uber, the cause celebre of the “sharing” economy, has recently lost a Court of Appeal challenge in London. This latest judgement shows that the courts will tend to view workers as self-employed only in circumstances where the company has strict control over their working conditions. The UK Supreme Court will provide some clarity on this in the coming years but in the meantime the position for self-employed workers remains uncertain.

The UK Government continues to drag its feet in implementing even the most basic of changes to mitigate the way the gig economy is damaging the rights of workers. On 7 February 2018 it announced its implementation of the Taylor Good Work Report would include a “consultation” around employment status. Even more bizarrely it announced it would introduce a right to request a more stable contract for zero hours workers?!? Without solid proposals to clarify the law on employment status it is clear that self-employed workers with diabetes will be unable to guarantee the reasonable adjustments they need in the workplace to take care of their health and manage their condition.

Blog by Deirdre Flanigan

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