The High Court has rejected an application for judicial review of the government’s COVID-19 Self-Employment Income Support Scheme (SEISS) on the basis that it discriminates against working mothers.
Under the SEISS, grants were awarded to self-employed people adversely affected by the coronavirus pandemic, based upon average trading profits over the preceding three tax years.
The payments do not exempt periods when self-employed women were not earning their usual salaries because they were on maternity leave – which meant that approximately 75,000 women who took maternity leave between 2016 and 2019 received a lower grant payment than other workers.
The case was brought by a self-employed mother and a maternity rights charity. They argued that the scheme breached the European Convention on Human Rights and the Equality Act 2010 by indirectly discriminating against self-employed women on the basis that it amounted to a ‘provision, criterion or practice’ that applied in the same way to everyone, but which disadvantaged women on maternity leave in the relevant calculation period, without justification.
The court observed that the SEISS was devised under enormous time pressures with the aim of getting payments to the self-employed as soon as possible and that moving away from a method of calculation based on profits would have involved expense and delay.
The court was not persuaded that there was unlawful discrimination because the disadvantage complained of was not caused by the SEISS itself, but from the reduction in past income, and the reasons for this reduced income was irrelevant given the context and purpose of the scheme.
Furthermore, the court found there were no hidden barriers to eligibility, and it was not more difficult for women on maternity leave to quantify their earnings than someone who was not on maternity leave.
The judge concluded that the government had a good reason for adopting an approach that was simple and which used one rule and one approach, applicable to all.
The charity is now considering its options for appeal.
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