What’s just happened?

It has been confirmed that on 21st January, Pregnant Then Screwed (PTS), an organisation that campaigns on issues that impact working mothers and offers support to those facing maternity-based discrimination, will be taking Rishi Sunak, the Chancellor of the Exchequer, to the High Court for discriminating against women in the Self-Employment Income Support Scheme (SEISS).1

What does this mean?

In April 2020 the Government launched the SEISS to support self-employed workers whose trade has been adversely affected by Covid-19. PTS contends that the eligibility conditions and calculation methods that determine payments have a discriminatory effect on women as they do not exempt periods of maternity leave.

This means that maternity leave breaks up working tax years, so that women who have had children do not qualify for the SEISS because they have less than three years of tax returns. The number of women affected is significant, currently calculated at 69,200 and most acutely affecting vulnerable women such as single mothers, those with a lower income, and those without savings. 2

When asked why he had not exempted maternity leave from the self-employed grant calculations, the Chancellor replied that ‘’for all sorts of reasons people have ups and downs and variations in their earnings, whether through maternity, ill-health or others.’’ PTS then wrote a pre-action protocol letter to the Chancellor and the response from his legal team compared maternity leave to taking a sabbatical. From there PTS felt it had no choice but to start legal proceedings.3

Not only does this omission in government policy perpetuate the expectation that women do unpaid labour in the form of childcare, but it reveals another demographic who have fallen through the gaps of the Chancellor’s financial support programmes.

How does this affect the legal sector?

PTS received permission for judicial review in November last year and base their challenge on three grounds. 4 Firstly, the SEISS calculation clause violates Article 14 (the right to protection from discrimination) read in conjunction with Article 1 of Protocol No.1 (the right to property) of the European Convention on Human Rights. In particular, SEISS indirectly discriminates against women who have taken maternity leave and, alternatively, discriminates against women who have taken maternity leave by failing to treat their situation differently to people who have not.

Secondly, the SEISS calculation clause breaches section 19 of the Equality Act 2010 by indirectly discriminating against women who have taken maternity leave.

Finally, the Chancellor has not complied with the public sector equality duty imposed by s.149 Equality Act 2010. In particular, the Chancellor has failed to give “due regard” to the impact that the SEISS eligibility conditions and calculation clause have on women.

The change PTS are requesting is simple: that the Chancellor take immediate steps to change the SEISS so that time taken for maternity leave is discounted when average earnings are calculated.5

Written by Hannah Phelvin

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References:

[1] Pregnant Then Screwed, ‘Taking the government to court for indirect sex discrimination’ (pregnantthenscrewed.com, 18 January 2021) https://pregnantthenscrewed.com/were-threatening-legal-action-against-the-chancellor-for-indirect-sex-discrimination/

[2] Ibid

[3] Ibid

[4] Practical Law Employment, ‘COVID-19: Permission for judicial review granted in SEISS indirect sex discrimination’ (Thomson Reuters, 06 November 2020) casehttps://uk.practicallaw.thomsonreuters.com/w-028 2411?transitionType=Default&contextData=(sc.Default)&firstPage=true

[5] Ibid