Who was failed the most?

The opening statement made by Professor Lydia Hayes on Day Two of the Tortoise COVID Inquiry

In the ground-breaking book, The Spirit Level (2009), Richard Wilkinson and Kate Pickett showed that the more unequal a society, the greater its problems. 

What mattered most to the social, economic and human health of a whole national population was the difference in income and wealth between the people at the top, and those at the bottom. It was inequality: the living of different lives, that made all the difference.

We know some important facts about the inequality of coronavirus.  Black people are three times as likely as white people to die from Covid-19. Severely disabled women are 11 times more likely to die from Covid 19 than non-disabled women. People with learning difficulties are 4 times more likely to die from Covid 19 than those without learning difficulties.

To understand the inequalities of exposure and protection from coronavirus, we can follow the approach of Wilkinson and picket: not to ask why? But to ask what? …

What differences between the lives of men and women are driving the 80% rise in calls to domestic abuse helplines during the first lockdown?

What differences between the lives of people who are disabled and those who are not, have cut short so many lives from Covid-19

What differences between the lives of black, asian and minority ethic people and the lives of white people make it more likely that BAME people will die from Covid-19?

The Office of National Statistics provides some pointers: “a large proportion of the difference in the risk of COVID-19 mortality between ethnic groups can be explained by where you live, or the occupation you’re in”

Inequality in working lives, whether paid or unpaid, are a big part of the Covid-19 story

For women, those employed as care workers are the most likely to die from Covid-19. For men, those employed as bus drivers and security guards have been most at risk of death from Covid-19 that those in any other occupation.

There is are proportionally far more people from the UK Black population than the white population who work as care workers, as taxi drivers and security guards. All three of these top risk occupations are low paid.

This suggests that factors of gender, and race and economic fortune are a backdrop to facts about exposure to, or protection from coronavirus.

Differences between lives are determined by (for want of a better phrase) the ‘rules of the game’ (the game being surviving or thriving in contemporary U.K. society). Many of those rules are found in social mores, culture, religion, and class norms, but such rules vary by place and time and don’t apply universally. However, there is a source of rules that apply to us all and that source is the rule of law. The phrase ‘no one is above the law’ communicates notions of legal equality. But legal equality does not necessarily mean a closing of differences.

Here are three examples of how law might be driving differences, inequalities, in working lives.  I think these differences are relevant to consideration of the question, Who was failed the most?

In the UK, a person who works full-time is not legally entitled to earn a living at an income that is sufficient for living a healthy life. The National Minimum wage is set by the requirement that the Low Pay Commission make a recommendation to Government.  Its recommendation is bound by statute to be based on the effect of any proposed rate on the economy as a whole and on competitiveness. The recommended rate is not based on the income needs of workers who seek to live healthy lives. Does that sound like a system designed to make work pay? Or does it sound like a system that might exacerbate poor health outcomes for workers who look to the law for protection against low pay?

The second rule is that should a worker get sick, as all workers do from time to time, the law does not provide universally for any income at all to be paid by the employer. Instead, it provides a set of statutory rules by which workers may be eligible to Statutory Sick Pay (SSP) at a rate of £95.85 a week. Depending on where in the UK you live, SSP is between 65-80% short of the income you need to live a healthy life. Does that sound like a system designed to ensure that workers who are exposed to coronavirus because of their work have the financial support necessary to enable them to self-isolate to protect their health and that of others?

The third rule is about health and safety.  We know that the provision and availability of Personal Protective Equipment was a key issue in exposing some groups of workers to coronavirus, particularly in confined spaces like taxis, care homes and shopping centres. Regulation 4 of the Personal Protective Equipment Regulations 1992 requires all employers to ensure that suitable PPE is provided to employees who may be exposed to a risk to their health and safety while at work, except where the risk has been adequately controlled by other means which are equally or more effective. This carries strict liability, requiring employers to ensure provision of PPE: no ifs, no buts. However, amendments made to the Health and Safety at Work Act 1974 in 2013, mean that workers can no longer make a direct claim based on a breach of those duties; from 2013 they could no longer directly found a legal challenge.

The Health and Safety Executive is the UK agency that promotes compliance with health and safety standards at work and has responsibility for legal enforcement.  Its projected funding is £100 million less than it was a decade ago. Over a decade of funding cuts, it has been required to pursue an agenda of deregulation, the simplification of health and safety law and (by the Deregulation Act 2015), the exempting of large groups of workers from the scope of legal protection.  We have no dedicated labour standards inspectorate in the UK and half the number of health and safety inspectors per 100,000 workers than in France.

Does this sound like a system that will ensure the equal protection of workers health no matter what their occupation?

I close with a quote from Martin Wolfe of the Financial Times, “COVID-19 has been a far more devastating economic shock than economists expected. This is a huge lesson, because an even more virulent disease is perfectly conceivable. For next time, people’s safety should remain the supreme law of politics now and forever”.

I respectfully add, that some people are more safe than others and inequality is rife.  It is the differences between us to which we must attend, in an effect to understand, by what differences were some groups failed more?

Watch Professor Hayes’ presentation again (below – 2 mins 35 seconds in). For more information about Day Two of the Tortoise COVID Inquiry, visit TortoiseMedia.com

Professor Lydia Hayes is Principal Investigator for the Wellcome Trust funded research project on Social Care Regulation at Work. Her research focuses on the socio-legal impact of minimum labour standards and basic employment rights. It blends detailed doctrinal analysis with qualitative social science methods. Recent books include One Hundred Years of Equal Pay Law (Hart, 2020) and Stories of Care: A Labour of Law (2017).