‘Pregnant women were indirectly discriminated against under SEISS’

Court of Appeal rules that SEISS rules on pregnant women were discriminatory, but says the urgency of the Covid context means this was justified.

Pregnant person sitting down holding bump whilst tapping on a laptop


Are SEISS rules discriminatory?

The Court of Appeal has ruled that the calculation of the self-employed income support scheme (SEISS) indirectly discriminated against new mothers, but that the urgency of the Covid context  justified the discrimination.

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 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 be entitled to less money.

The Court  of Appeal 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.

When challenged by Ellie Reeves MP in Parliament in May 2020 on the discriminatory impact of the schemes, Rishi Sunak, the Chancellor of the Exchequer, had 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.”

Leigh Day solicitor Anna Dews said: “The Court of Appeal has unequivocally found that the calculation of SEISS payments was indirectly discriminatory. While the appeal was ultimately dismissed on the facts of justification due to the circumstances of the early pandemic, my clients are pleased to have clarified the law on discrimination and it appears that other maternity discrimination challenges may now be brought in similar, but less rushed, contexts.”

Joeli Brearley, CEO and founder of Pregnant Then Screwed which took the case to court, said: ”Now that we have proven this scheme was deeply flawed, we are asking the Government to reimburse the 75,000 women who have been financially hurt by its inadequate planning. We have heard from women who have been struggling to pay for food and rent because this scheme let them down.

“We are also asking the Government to put in systems and processes around its policy-making to ensure something like this never happens again. Pregnancy and maternity leave are not unusual. They are a very normal part of everyday life. The government has a legal obligation to plan for everyone, not just the people who look and sound like them.”

She added that SEISS rules were not the only example of pregnant women being ignored during the pandemic, pointing out that  they were the only vulnerable group not to be prioritised for the vaccine and the delay in the publication of policy on workplace safety guidance and Covid. There were also concerns about lack of clarity over using the furlough scheme for childcare reasons when schools and nurseries were closed.

The appeal was powered by thousands of women who contributed their money and their testimonies to this important court case. It was also supported by the Musicians Union, The Federation of Entertainment Union and Community Union.

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