Tag: Employment rights

‘Disability confident’ DWP acted ‘perversely’ in sacking of disabled woman, court says

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The government’s meaningless Disability Confident campaign.

The Guardian reports that a disabled woman was discriminated against when she was unfairly sacked by the Department for Work and Pensions, which behaved in a “perverse” and “blinkered” manner, a judge has found. 

Isabella Valentine was employed by the DWP on a programme designed to get vulnerable, long-term unemployed people back into work by nurturing and training apprentices over a 12-month period, bringing them to a point where they could apply for jobs in the usual way. Instead, “inexplicable and strange” disciplinary measures were taken by the DWP after just four days’ sickness that led to Valentine’s dismissal. 

“I suffer regular migraines that are so severe and unpredictable that I am officially classed as disabled. Because of that and a lack of qualifications, I haven’t been able to find decent employment,” said Valentine.

“When I was handpicked for this programme, I was so happy. I hoped that I had finally found employers who would let me do a good job while being understanding of the time off I sometimes have to take because of my migraines. 

“Instead, I was made to feel small and so stressed that my migraines got even worse. Not only were no reasonable adjustments made for my disability as legally required but I was subject to the same strict and unbending rules that permanent employees had to work by.” 

She added: “My manager started harassing me on the first day I took off sick because of a migraine. By the fourth day, the department had started disciplinary proceedings and decided to dismiss me. Which it then did.” 

In his judgment, the employment judge, Robin Postle, said: “[Valentine’s treatment] does beg the question, why, given the nature of why the claimant was put on the course, to try and get her back into the workplace, the [DWP] did not make reasonable adjustments [under the Equality Act 2010], in disregarding migraine absences, or indeed, simply taking no further action. The claimant has suffered unfavourable treatment and she had a disability.” 

The DWP has been taken to the employment tribunal by staff almost 60 times over claims of disability discrimination in a 20-month period. The DWP, which has about 75,000 staff, has the worst record on disability discrimination of any large government department with 57 cases, compared with 20 cases against the Home Office (which has about 30,000 staff), 32 against the Ministry of Justice (about 70,000 staff) and 29 against HM Revenue and Customs (about 60,000 staff). 

The number of allegations made by disabled staff is surprising because the DWP is responsible for the much-criticised Disability Confident scheme, which aims to help employers recruit and retain disabled employees. DWP claims to be a Disability Confident leader”, the highest of the scheme’s three levels. 

Valentine’s manager was told she would require extra support and leeway to enable her to complete the course. The Suffolk Law Centre solicitor Carol Ward fought the case as part of the National Lottery Reaching Communities-funded project Tackling Discrimination in the East, said: “The behaviour of the DWP was particularly inexplicable and strange because the whole point of the course was to help the apprentices who struggled to cope in the workplace. 

“The claimant had been personally chosen by a DWP work coach. The scheme specifically said apprentices would need nurturing and support, and that they weren’t expected to contribute to the business in the same way as those recruited in the usual way. But as soon as she hit the four-day absence trigger, disciplinary procedures were started.” 

The behaviour of Valentine’s managers was, the judge found, “frankly perverse”. Meetings with Valentine were frequently misrepresented in “clearly incorrect” letters sent by her direct manager. 

Instead of exercising the discretion available to her, the same manager “slavishly followed the policy in a blinkered manner”, while a second manager “had a closed mind”. A third manager who conducted Valentine’s appeal failed to do basic checks on the considerable leeway that had been granted to many other apprentices on the same course.

The consequence was a “predetermined decision” to dismiss Valentine before she had even returned from her second period of sick leave. 

“This was particularly surprising given the fact that [one of the managers said] it became clear very quickly that this was a group of people who needed a lot of support as they were not used to the working environment and needed support to help them cope,” said the judge. 

The DWP said: “We accept this decision. Our general approach is a supportive one – we provide employees with free access to counselling, health advice, physiotherapy and workplace adjustments to manage absences, and we do not dismiss staff without proper consideration and taking professional advice.”

The evidence strongly suggests otherwise. 

 


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“Gig economy” companies exploit workers and are free-riding on the welfare state

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Deliveroo couriers plan legal action against the food delivery firm to claim better employment rights including the minimum wage, sick pay and holiday.

The 20 delivery riders say they are employees and not, as the company argues, self-employed contractors. In the latest challenge to employment conditions in the gig economy, they are seeking compensation for not receiving holiday pay and for being paid wages below the legal minimum for employees.

The Deliveroo worker’s move follows successful employment tribunal cases brought by cycle couriers at CitySprint, Excel and drivers for taxi app Uber. All three cases found the riders were workers, meaning they are entitled to basic employment rights including holiday pay and the minimum wage, rather than self-employed contractors with no employment rights. 

Uber claimed that its 40,000 drivers in the UK are self-employed, and therefore not entitled to pensions, holiday pay, or other basic employment rights. An employment tribunal in London disagreed, calling Uber’s argument that it was simply a technology company “ridiculous”, and they were relying on “fictions and twisted arguments.”

HMRC is investigating delivery giant Hermes for paying workers less than the minimum wage. Staff receive no holiday or sick pay, and risk losing work if they can’t make their rounds due to illness or lack of childcare.

Some 78 couriers working for Hermes, a company that describes itself as “the UK’s largest nationwide network of self employed couriers”, have subsequently made complaints to Frank Field, the chairman of the House of Commons work and pensions select committee.

It is estimated that falsely classifying workers as self-employed is costing the UK up to £314m per year in lost tax and national insurance contributions. 

A recent study has found that the average self-employed contractor is now paid less than in 1995

The Resolution Foundation – a think tank that aims to improve pay for families – partly has blamed the changing nature of the self-employed workforce. Their report says: “With the introduction and growth of the [so-called] New Living Wage, by 2020 more than 1 in 7 are expected to be paid at or only just above the legal minimum. This increases the need for employers and government to provide personal progression opportunities to get people beyond the wage floor.”

Currently, the government expects individuals to make in-work progression without support, or face financial penalties (sanctions) to their top up Universal Credit. This draconian approach forces unreasonable responsibility onto individuals and their familes, because the problem of low pay is one of exploitative employers and government policy rather than of individual behaviour.

Employers are responsible for setting pay levels and terms. The problem is more broadly one of the key features of neoliberalism, which has led to increasing employment precarity, characterised by insecure, exploitative forms of work. Meanwhile, the organisation of labour and collective bargaining by trade unions are being portrayed as “market distortions” by a government (and a party) that has legislated mercilessly to undermine the basic rights and fair levels of pay for employees.

The Labour party have pledged to reverse the Conservative’s anti-union laws if they are elected June.

The political logrolling of the profit incentive presents us with the most unedifying and hard face of neoliberalism, in which human need is profoundly devalued; the employee is merely availed of as an object of value extraction. The Conservatives certainly don’t value the idea of “a fair day’s wage for a fair day’s work”, despite all their rhetoric about “making work pay”. Over the past six years, we learned that this slogan was only a semantic decoy: a cover for the dismantling of our welfare state by a creeping, unremitting stealth.

The report went on to say that many more people had taken up lower-paid jobs in the so-called “gig economy, essentially self-employed workers taking on a variety of different roles, while the proportion of self-employed business owners with their own staff had fallen. The number of hours worked by the self-employed had also declined.

The foundation said this had limited wage growth before the financial crash, but that pay had been “squeezed” in real terms more recently, falling £100 a week by 2013-14.

Last year, TUC general secretary Frances O’Grady said: “Britain’s new generation of self-employed workers are not all the budding entrepreneurs ministers like to talk about.

“While some choose self-employment, many are forced into it because there is no alternative work. Self-employment today too often means low pay and fewer rights at work.”

The Resolution Foundation’s most recent briefing looks at the final quarter of labour market data for 2016. It says: “Most importantly, inflation has risen rapidly in recent months, weighing heavily on real pay growth – though published pay statistics will take some time to fully reflect this. Well over a third of the workforce are experiencing shrinking pay packets according to the latest figures, in sectors ranging from accommodation to finance and the public sector. Many more will join them in the coming months as inflation continues to rise, with pay across the economy as a whole set to have fallen in the first three months of 2017.

Indeed, our ‘Spotlight’ article notes that real pay in the public sector has likely now begun a fall that could well last for several years. Conversely, private sector pay growth will continue to outpace the headline average earnings figures.”

A Department for Business spokesperson said the government was “committed to building an economy that works for everyone”.

Last year, Damian Green said, in a speech at the Resolution Foundation, that the private sector and voluntary sector “should be more involved in the provision of welfare services”. Green’s endorsement of the “exciting” gig economy and the “huge potential” that it offered came just the month after an employment tribunal found that drivers for the Uber car service should in fact get the minimum wage and paid holiday. 

Green also said: “The Government is a necessary, but not sufficient provider of welfare.” 

Shadow Digital Economy minister Louise Haigh tabled an amendment to the Government’s Digital Economy Bill, New Clause 24, following the tribunal ruling against Uber. 

She said there was still a danger that despite the ruling, Silicon Valley multinationals and other employers could use “loopholes” to break the rules and get around workers’ protections. 

Haigh said: “This is a landmark ruling for workers in the digital economy, and a great victory for the GMB and its members.

“The digital economy was supposed to promise choice and flexibility, but the reality for too many in the sector is that they are overworked, underpaid and exploited by bosses they never meet and who do not even fulfil their basic duties as an employer.

The Work and Pensions Committee report

In a new report the Work and Pensions Committee also concluded that the government must close the loopholes that are currently allowing “bogus” self-employment practices, which are potentially creating an extra burden on the welfare state while simultaneously reducing the tax contributions that sustain it. Increasingly, some companies are using self-employed workforces as cheap labour, excusing themselves from both responsibilities towards their workers and from substantial National Insurance liabilities, pension auto-enrolment responsibilities and the Apprenticeship Levy. 

In an inquiry that has had to be curtailed because of the election, the Committee heard from “gig economy” companies like Uber, Amazon, Hermes and Deliveroo, and from drivers who work with them. The evidence taken painted starkly contrasting pictures of the effect and impact of “self-employment” by these companies.

Companies utlilising self-employed workforces frequently promote the idea that flexible employment is contingent on self-employed status, but the Committee says this is a fiction.

The report

The Committee says:

  • The apparent freedom companies enjoy to deny workers the rights that come with “employee” or “worker” status fails to protect workers from exploitation and poor working conditions. It also leads to substantial tax losses to the public purse, and potentially places increased strain on the welfare state.
  • Designating workers as self-employed because their contract offers none of the benefits of employment puts the cart before horse. It is clear, though, that this logic has taken hold, enabling companies to propagate a myth of self-employment. This myth frequently fails to stand up in court, but individuals face huge risks in challenging their employment status that way.
  • Where there are tax advantages to both workers and businesses in opting for a self-employed contractor arrangement, there is little to stand in the way.
  • An assumption of the employment status of “worker” by default, rather than “self-employed” by default, would protect both those workers and the public purse. It would put the onus on companies to provide basic safety net standards of rights and benefits to their workers, and make the requisite contributions to the social safety net. Companies wishing to deviate from this model would need to present the case for doing so, shifting the burden of proof of employment status onto the better resourced company. 
  • Self-employed people and employees receive almost equal access to all of the services funded by National Insurance, especially with the introduction of the new state Pension, yet the self-employed contribute far less. The incoming government should set out a roadmap for equalising employee and self-employed National Insurance Contributions.
  • The Department for Work and Pensions (DWP) needs to ensure that its programmes and resources reflect the positive contribution that self-employment can make to society and the economy. This may require an expansion of specialist support in JobCentre Plus.
  • The DWP is seeking to support entrepreneurship without subsidising unprofitable self-employment. The existing Minimum Income Floor (MIF) in Universal Credit (UC) does not get this balance right and risks stifling viable new businesses. The incoming Government should urgently review the MIF with a view to improving its sensitivity to the realities of self-employment. Until this is complete, the MIF should not apply to self-employed UC claimants.

Chair’s comments

Frank Field MP, Chair of the Committee, said;

“Companies in the gig economy are free-riding on the welfare state, avoiding all their responsibilities to profit from this bogus “self-employed” designation while ordinary tax-payers pick up the tab. This inquiry has convinced me of the need to offer “worker” status to the drivers who work with those companies as the default option. This status would be a much fairer reflection of the work they undertake which seems to fall between what most of us would think of as “self-employed” or “employed”. 

It would also protect them from some of the appalling practices that have been reported to the Committee in this inquiry. Uber’s recent announcement that it will soon charge its drivers for sickness cover is just another way of pushing costs onto the workforce, to reinforce the impression that those workers are self-employed.

Self-employment can be genuinely flexible and rewarding for many, but “workers” and “employees” can and do work flexibly. Flexibility is not the preserve of poorly paid, unstable contractors, nor does the brand of “flexibility” on offer from these gig economy companies seem reciprocal. It is clearly profit and profit only that is the motive for designating workers as self-employed. The companies get all the benefits, while workers take on all the risks and the state will be expected to pick up the tab, with little contribution from the companies involved.

It is up to Government to close the loopholes that are currently being exploited by these companies, as part of a necessary and wide ranging reform to the regulation of corporate behaviour.”

Uber


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Disabled people’s human rights in further jeopardy because of Brexit

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The UK government has tended to regard human rights as optional; as being rather more like ‘guidelines’ than laws, and often, as a mere inconvenience and barrier to the fulfillment of their ideological commitments.

Opportunities for disabled people in the workplace are likely to come under further threat unless government prioritises the recreation of EU safeguards into British statute. That is according to diversity consultancy, The Clear Company, which contributes to the government’s Disability Confident Campaign.

Former Paralympian Baroness Grey-Thompson has also warned that leaving the European Union would prevent British people with disabilities benefiting from plans to boost accessibility.

She added that Brexit would also risk a recession that would leave less money to be spent on support services. She said:

“Our membership of the European Union has had real, positive benefits for the millions of UK residents with limiting long-term illnesses, impairments or disabilities.

“It has helped to counter workplace discrimination, obliged transport providers to make their services more accessible and secured access to some UK disability benefits for Britons living in other EU countries.

“Not only would leaving Europe jeopardise these, it would close us off from enjoying the rewards of upcoming legislation that will further increase accessibility and risk a recession that would leave less money to be spent on much-needed support services.”

Fiona McGhie, Public Law expert at Irwin Mitchell, said:

“What Brexit would affect is the ability to potentially rely on the European Charter of Fundamental Rights (CFR) which in particular includes many wider social and economic rights, such as the rights to fair and just working conditions, to healthcare and to have personal data protected. If disabled people wished to try and strike down UK legislation as incompatible with rights under CFR under EU law – that avenue may not be available after the vote to leave.”

In the wake of the referendum, the following is an official press release from ResponseSource, which is a journalist enquiry service that provides a press release wire:

The EU promotes the active inclusion and full participation of disabled people in society, in line with the EU human rights approach to disability issues, through priorities including accessibility, participation, social protection and external action. It works around a firm ethos that disability is a rights issue rather than a matter for discretion.

From an employment perspective, the objective of the European Commission’s European Disability Strategy 2010-2020 is to significantly raise the number of people with disabilities working in the open labour market. They represent one-sixth of the EU’s overall working-age population, but their employment rate is comparatively low at around 50%.

The EU promotes the active inclusion and full participation of disabled people in society, in line with the EU human rights approach to disability issues, through priorities including accessibility, participation, social protection and external action. It works around a firm ethos that disability is a rights issue rather than a matter for discretion.

Commenting on this morning’s revelation, Kate Headley, Development Director at The Clear Company, said:

“As long as the UK was part of the EU, disabled people had the benefit of EU frameworks and directives to act as a safety-net against British government and any power it may exert. Now, the future of policy which most affects disabled people is in the hands of Whitehall alone.

“There is no doubt that EU-derived laws, and EU-led initiatives, have had a largely positive impact on the disabled community. This may explain why Miro Griffiths, a former government adviser and project officer for the European Network on Independent Living, recently went on record to say he believed that Britain’s exit from the EU “would have dire consequences for disabled people”. Our priority now is to help ensure that the rights disabled people currently hold are protected post-Brexit.

“Aside from the issues of how the UK’s decision to exit will impact the NHS and wider care services, the European Health Insurance Card, and EU Air Passengers Regulation – all of which disproportionately affect those with disabilities – we must also look at the effect on disabled people in the workplace.”

“The EU’s record on assisting disabled workers is strong. Its Employment Equality Directive 2000, for example, led to the removal of the original exemption in the Disability Discrimination Act (DDA) for employers with fewer than 20 staff in the UK, so that in 2004 it became unlawful for any UK employer to discriminate against disabled people. The employment directive also led to the DDA being changed to make direct discrimination by employers against disabled people unlawful.”

“The TUC has identified employment rights that could well be under threat from a government no longer required to comply with EU legislation. Many of these promote health and well-being at work and home, such as the Working Time Directive, which protects from stress and ill-health that arise from working excessive hours including health service workers.”

“I would urge the government, post Article 50, to recreate the safeguards that disabled people have benefited from under EU membership into British statute. We will gladly continue to support the government in the development of strategy and stand by our commitment to support employers and employees alike. Amid the avalanche of new legislation which will almost certainly flood Whitehall in the coming months, laws that safeguard and support disabled workers must be prioritised as EU law recedes.”

Related

Unfortunately, the UK government has systematically violated the human rights of disabled people. It’s highly unlikely, given the current context, that the Conservatives will recreate the EU safeguards and incorporate them in protective legislation.

The new Work and Health Programme: government plan social experiments to “nudge” sick and disabled people into work

Prime minister dismisses UN inquiry into government’s discriminatory treatment of disabled people

The biggest barrier that disabled people face is a prejudiced government

The Government’s brutal cuts to disability support isn’t ‘increasing spending’, Chancellor, but handing out tax cuts to the rich is

If even the DWP isn’t Disability Confident, how will a million disabled people get jobs? – Bernadette Meaden

Labour MPs speak out against the TTIP and investigation opens into the impacts on environmental protections

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The impact of the controversial Transatlantic Trade and Investment Partnership trade deal on environmental protections in Europe is to be investigated by parliament. Opposition MPs will examine if the agreement could weaken regulations on chemical and pesticide use, oil and gas extraction and genetically modified food.

The Transatlantic Trade and Investment Partnership (TTIP) is a planned free trade agreement between the European Union and the US. Those who support it claim that it will “boost” economies. However there have been many concerns raised regarding this agreement. Critics say that not only have the economic benefits of TTIP have been overstated, it will additionally put downward pressure on regulation in sectors such as health and the environment and poses a significant threat to national democratic decision-making.

Worryingly, moves by a future democratically elected government to put the deregulation process into reverse and bring our public services – including our NHS, railways, water, energy and other utilities – back into public ownership would be confronted by an international court system (ISDS) where lawyers will judge what is or is not a barrier to “free trade”. And it will be carried out behind closed doors. Corporates can go on to sue nation states that stand in the way of “free trade” and threats to future as well as actual losses to profits.

In August 2014, Labour MP Katy Clark urged David Cameron to stop the EU-US trade pact from opening more public services to the private sector.

The Transatlantic Trade and Investment Partnership (TTIP), which has remained under negotiation behind closed doors, “would let companies sue if national governments pass laws that hurt profits,” Ms Clark warned.

This is bad news for our existing public services such as the NHS, or other services that we may wish to take back into public ownership such as the railways.

“Private companies already run certain services but under the new plans the government would never be allowed to run these again, as doing so would hurt the profits of the companies involved.”

Since discussions on the content of the Treaty have remained secret, its exact content is unknown, (including to the Labour Party) but private firms on both sides of the Atlantic are keen to use competition rules to force open what remains of the public sector.

During a parliamentary debate in February, secured by back bench Labour MP John Healy, Labour MPs, including Katy Clark, raised many concerns about the TTIP.  Jeremy Corbyn said: “Why is there such secrecy surrounding the negotiations? Why are not all the documents on the table? Why are the demands made on European public services by the American negotiators not made public? Why are not the demands made in the other direction also made public? I suspect that, if the agreement ever comes to fruition, every Parliament in Europe and the US system will be presented with a fait accompli: they will be told that they have to accept it.”

Ian Lavery  commented: “A number of people have said that there must be a good business case for the transatlantic trade and investment partnership. I think that we need much more than a good business case. I am concerned that there are huge inherent dangers in the TTIP for many working people and for public services in the UK. My major concern is that the trade agreement has the potential to dilute workers’ rights.”

Katy Clark, the North Ayrshire and Arran MP, wrote to the Prime Minister urging him to protect public services and pointed out that France won the right to continue supporting its film industry and that the US had blocked any deal on its finance sector.

She said: “If the leaders of these countries can protect what’s important to them, then David Cameron can do the same for Britain.”

Neil Clark from the Campaign for Public Ownership, said the Labour MP’s warning was timely as people had “still not woken up to the consequences of TTIP.”

“It is fundamentally undemocratic, since though large majorities of the public are in favour of renationalising key services such as the railways or energy, subsequent governments would be unable to do so without breaking the terms of the pact.

“But it would impose privatisation forever and must be stopped in its tracks.”

Angela Eagle said: “I know that following widespread public concern, the European Commission halted negotiations on the investor state dispute settlement (ISDS) section of TTIP pending the outcome of a public consultation. I appreciate that there are serious concerns about the potential impact of the ISDS provisions and I hope that the European Commission will consider the responses to this consultation carefully.”

In November last year, Labour MP Clive Efford, with the backing of the party’s leadership, called for the exemption of the NHS from the trade deal. It was a victory for the Private Member’s Bill to repeal the Tory privatisation of the NHS and Exempt the NHS from the TTIP Agreement. Mr Efford said: “The Bill will not save the NHS overnight – only the election of a Labour government can do that. But it does give all MPs the opportunity to accept that the 2012 Act has been a disaster and to begin to create an NHS which puts patient care at the centre of all it does, not private profit.”

Andy Burnham, the shadow Health Secretary, claimed that signing TTIP could jeopardise the founding principles of the health service. The many critics of this trade agreement fear that the deal would leave the NHS vulnerable to takeover by American healthcare giants and undermine the principle of a service free at the point of delivery.

Joan Walley MP, chair of the Commons Select Environmental Audit Committee (EAC), which launched its inquiry on 8th January, said: “We will be investigating whether it really is possible to sign such a deal and at the same time safeguard European environmental standards, as negotiators have claimed.

Greater transatlantic trade and investment could be beneficial for Britain, but we must monitor these talks carefully to ensure they are not trading-in the rules that keep our food and environment safe.”

A recent report from the Center for International Environmental Law (Ciel) argues that the European chemical industry wants the US system of chemical risk assessment to be adopted, which the group says would allow the use of over 80 pesticides currently banned in the EU. Other campaigners say US biotech companies want to use TTIP to open EU borders to imports of genetically modified food.

Samuel Lowe, from Friends of the Earth, said: “With the potential for essential environmental and food standards to be discarded as ‘trade irritants’, the TTIP presents a unique challenge to the health of our environment. The EAC should scrutinise the proposals and ensure that these serious concerns are no longer brushed under the carpet.”

Absolutely. Labour has said very clearly that they won’t back this Treaty unless the NHS and other key public services are excluded. The crucial inquiry, which Labour MPs have called for is welcome. It`will focus on the potential environmental impacts in the UK of TTIP, including through changes to regulations and product standards and the operation of an “inter-state dispute settlement” regime; and on the potential effects on developing countries. Gathering evidence is an essential when it comes to the process of agreeing, formulating or rejecting policies

 

Further reading:

The coming Corporatocracy and the death of democracy

Just what will TTIP mean for our jobs, environment, consumer rights – and publicly provided health service?

Lord Howe said we couldn’t exempt the NHS because it would place our pharmaceutical companies at a disadvantage.

If we don’t do something about the TTIP it may be all of us who will be at a disadvantage.

And one thing which is clear is that the TTIP will open up the NHS to American private health companies.”

There are some things we just can’t afford to risk – and the NHS is one of them.
Andy Burnham has already been to Brussels to discuss NHS exemptions.
Labour is committed to them.

“The report – on the workings of NAFTA – the North American Free Trade Agreement – which has been around for 20 years suggests we may need to go further – and we certainly need far more open discussion of what’s at stake.

This is something the LibDem/Tory Coalition seem very reluctant to have.
Could the pattern of funding of the Tory party have anything to do with that?

We merely ask.” – TTIP/ EU-US Trade Agreement – you can’t trust the LibDem/Tory Coalition with the NHS Alex Sobel MP

 

Pictures courtesy of  Robert Livingstone