Press release Update: 17th February 2021 Taking the government to court for indirect sex discrimination
We are incredibly disappointed to have lost our legal challenge against the Government for discrimination due to the way the SEISS has been calculated.
Reading the verdict we feel that there are serious legal errors and find the judgment to be fundamentally flawed. We are now considering our options for appeal. We are, of course, deeply concerned for the vulnerable new mothers who have had a much-reduced payment compared to their male and childless counterparts, and are now really struggling over the winter period. How a judge could consider this not to be discrimination has really shocked all of us. Thank you to everyone who offered their support with this case. We hope that people will continue to support us if we go to appeal.
The full judgement is available to download here
Background to the legal challenge
Pregnant Then Screwed, with support from Doughty Street Chambers and law firm Leigh Day, took the Chancellor to the high court on Thursday 21st January for discriminating against women in the Self-Employment Income Support Scheme (SEISS).
SEISS was introduced by the Chancellor of the Exchequer in April 2020, to support self-employed workers whose trade has been adversely affected by Covid19. The eligibility conditions and calculation method chosen by the Chancellor have a discriminatory effect on women as they do not exempt periods of maternity leave. The number of women affected is significant: currently calculated at 69,200. Pregnant Then Screwed are asking the Chancellor to take immediate steps to change the SEISS so that time taken for maternity leave is discounted when average earnings are calculated.
Pregnant Then Screwed started legal proceedings after the Chancellor was asked why he had not exempted periods of maternity leave from the self-employed grant calculations. His response was that: ‘’for all sorts of reasons people have ups and downs and variations in their earnings, whether through maternity, ill-health or others.’’ Pregnant Then Screwed then wrote a pre-action protocol letter to the Chancellor and the response from his legal team compared maternity leave to taking a sabbatical. We felt we had no choice but to start legal proceedings.
Joeli Brearley, CEO and founder of Pregnant Then Screwed, explains, “The government has had 9 months to amend this scheme so that it doesn’t discriminate against women; but they have chosen not to. We’ve had heartbreaking messages from so many women. For some this drop in income has left them and their young family in desperate poverty; while their male colleagues are in receipt of the full benefit.”
“But this isn’t just about the 69,000 vulnerable new mothers who have received a payment that is well below what they should have received. It is about the critical importance of maternity leave and ensuring that as a society we value it. Giving birth and caring for the next generation, particularly in a baby’s first year of life, is work; it is mentally and physically exhausting work. Not only that but ensuring the next generation survives and thrives is surely the most important job there is. For maternity leave to be dismissed as the same as being sick or taking a sabbatical is not only insulting, but it sends out a very dangerous message about how this government views mothers and the integral role we play in a well-functioning society. This court case is about defending women’s rights and showing the government that they cannot ride roughshod over the Equality Act.’
The three grounds for our challenge
- 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
- The SEISS calculation clause breaches section 19 of the Equality Act 2010 by indirectly discriminating against women who have taken maternity leave
- 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.
