Court of Appeal rules SEISS scheme discriminated against new mothers

Last week, the Court of Appeal ruled that the calculation of the self-employed income support scheme (“SEISS”) indirectly discriminated against new mothers. This is an important decision and recognises the discrimination experienced by many new mothers, including creatives and Equity members. The Court of Appeal did, however, maintain that the urgency with which civil servants acted at the outset of the Covid-19 pandemic justified the discrimination. While Equity strongly disputes any justification for discrimination, we are proud to have supported and helped fund the early stages of the case, which was brought by Pregnant Then Screwed.

Sadly, as the Court of Appeal ruled that the discrimination was justified, impacted women will not receive an automatic rebate. But Pregnant Then Screwed are continuing to call on Rishi Sunak to acknowledge the discrimination and take decisive action to rectify the issue.  

About the case

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."

Together with Community, The Writers Guild, NUJ, BECTU, Sweet Cecily’s natural skincare and Musicians Union, Equity supported the early stages of the case that saw Pregnant Then Screwed granted permission for judicial review against the Chancellor of the Exchequer for discriminating against women in the implementation of SEISS. This meant that Pregnant Then Screwed could take the case to go to the Court of Appeal.