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Court of Appeal Rule that the Calculation of the Government’s SEISS Scheme Discriminated Against New Mothers

Campaign organisation Pregnant Then Screwed submitted an appeal about the disproportionate impact SEISS calculations have on new mothers, which has now been accepted with the caveat that the urgency of the situation justified the discrimination.

Published: 29 November 2021 | 12:55 PM Updated: 02 December 2021 | 3:07 PM
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The Government only began to consider the impact the scheme would have on new mothers in late April 2020. Photo credit: Shutterstock

In an important judgment handed down recently, the Court of Appeal agreed with Pregnant Then Screwed’s submissions (which were supported by the MU alongside other organisations) that the calculation of the self-employed income support scheme (“SEISS”) indirectly discriminated against new mothers.

The Court of Appeal, however, maintained that the urgency with which hard-pressed civil servants acted at the outset of the Covid-19 pandemic justified the discrimination.

Disproportionately low payments were made to recent mothers

SEISS was introduced in spring 2020 to give financial help to self-employed workers impacted during the Covid-19 pandemic. The primary method of calculating payments under SEISS was by reference to an individual’s average trading profits (“ATP”) from three tax years: 2016/17, 2017/18, and 2018/19.

The result of this method of calculation was that women who took a period of maternity leave in those tax years would receive a payment that was not representative of their usual profits. The Court accepted that this calculation method led to disproportionately low payments being made to recent mothers and that it was clear that the reason for the lower earnings in past years was gender-related.

Despite the disproportionate impact, the Court of Appeal accepted the evidence of the Government that in the limited time available, it would not have been possible to amend the scheme without compromising the Government’s requirements of speed, simplicity and verifiability.

The findings of the Court are contrary to the comments made by Rishi Sunak MP, The Chancellor of the Exchequer who, when challenged by Ellie Reeves MP in Parliament in May 2020 on the discriminatory impact of the schemes, denied that SEISS was discriminatory. He argued that SEISS did not discriminate because “For all sorts of reasons people have ups and downs and variations in their earnings, whether through maternity, ill-health or others."

The Government will no longer be able to hude behind claims that pregnancy is the same as taking a holiday

Joeli Brearley, CEO and founder of Pregnant Then Screwed said:

''We are delighted that the Court of Appeal has ruled that this was indirect sex discrimination. The Government has a legal obligation to ensure none of its policies has a disproportionate impact on any group unless it can justify it.

“We are disappointed that the Court held that the circumstances of the early days of the Covid-19 pandemic justified the discriminatory impact on new mothers. However, we are no longer in the early days of the Covid-19 pandemic. The Government will now have to consider the discriminatory impact of its policies and will no longer be able to hide behind claims that pregnancy is the same as taking a holiday.

“The fact that women who have taken a period of maternity leave to do the most important job in the world – raising the next generation – are then subject to a lower payment is quite clearly discrimination.

“The Government only began to consider the impact the scheme would have on new mothers in late April 2020 after we raised the alarm bells in Parliament.

“And it has taken this legal case to demonstrate what we have been saying all along - that the needs of pregnant women and new mothers have not been considered by the Government during the pandemic.

“Going forwards, to ensure this never happens again, we want to see transparent equality impact assessments, a gender advisor should scrutinise all policies, financial schemes and guidance put forward by the Government, and we need more mothers representing us in Parliament.’’

The appeal was powered by public funding via Go Fund Me, and it was supported by the Musicians Union, The Federation of Entertainment Union and Community Union.

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