Judge confirms SEISS discriminated against new mums

The Court of Appeal has ruled that the government’s support for the self-employed discriminated against new mothers

The Court of Appeal confirmed that the Self-Employment Income Support Scheme (SEISS) indirectly discriminated against new mothers in its calculations.

However, judges maintained that the urgency with which the scheme was put together at the outset of the pandemic justified the discrimination.

The case was brought by Pregnant Then Screwed, a charity that supports and protects the rights of mothers. 

SEISS was introduced to give financial help to self-employed people impacted by the coronavirus pandemic in Spring 2020. 

SEISS calculation method was ‘deeply flawed’

The primary method of calculating payments under the scheme was by taking the average trading profits from three consecutive tax years: 2016/17, 2017/18 and 2018/19.

However, this method, the charity argued, was not representative of the usual profits for women who had taken a period of maternity leave in those tax years.

The Court of Appeal accepted that as a result, this led to new mums receiving disproportionately lower payments and the reason for the lower income was gender-related.

The ruling contradicts comments made by chancellor Rishi Sunak, who denied that the scheme was discriminatory when challenged by MPs in parliament in May 2020.

‘Female experience was ignored in government planning’

He said at the time: “For all sorts of reasons people have ups and downs and variations in their earnings, whether through maternity, ill-health or others.”

Joeli Brearley, CEO and founder of Pregnant Then Screwed, 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.

Brearley highlighted the importance of this ruling because it was not the only pandemic response that “hurt and disadvantaged women” and generally the “female experience was ignored in government planning.”

This included pregnant women being the only vulnerable group not to be prioritised for the vaccine. They were also “ignored” when it came to workplace safety guidance. 

SEISS case could pave the way for other maternity-related claims

“But this is also important in a much wider application to discrimination that predated Covid and is still happening now,” she added.

“It’s a very significant development for women who are being denied mortgages or bank loans because they took a period of maternity leave and I expect to see that application before too long.”

Leigh Day solicitor Anna Dews, who represented Pregnant Then Screwed, 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.”

News of this case comes soon after HMRC revealed that the number of self-employed workers under investigation for SEISS fraud has risen by 27% in the past 3 months, as reported here.