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Appeal granted for SEISS sex discrimination case

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Written by: Emma Lunn
26/05/2021
Pregnant Then Screwed has been granted leave to appeal after it lost a legal challenge arguing that the government’s Covid-19 financial support scheme discriminated against self-employed mothers.

The campaign group lost a court case in February but says it has now been granted approval to appeal the High Court ruling.

Pregnant Then Screwed, with support from Doughty Street Chambers and law firm Leigh Day, took chancellor Rishi Sunak to the high court in January over the way the Self-Employed Income Support Scheme (SEISS) grant was calculated.

SEISS was introduced by the government in April 2020 to support self-employed workers whose income had been adversely affected by Covid-19.

Money paid out under the SEISS is based on a percentage of average profits over the past three years. But the eligibility conditions and calculation method do not exempt periods of maternity leave. This means women who have taken time off to have a baby in the past three years receive a lower grant payment than other workers. Pregnant Then Screwed says this means the scheme indirectly discriminates against women.

The group asked the chancellor to take immediate steps to change the SEISS so that time taken for maternity leave was discounted when average earnings are calculated.

But the chancellor’s response was: “for all sorts of reasons people have ups and downs and variations in their earnings, whether through maternity, ill-health or others.’’ In an official response, Sunak’s legal team compared maternity leave to taking a sabbatical.

Pregnant Then Screwed said about 69,200 women had been impacted. It begun legal proceedings in July 2020, with the case heard in February 2021. But Mrs Justice Whipple said she did not deem the matter to be indirectly discriminatory and that it imposed no hidden barriers to eligibility.

The group are appealing the case on three grounds. The first ground is that the court erred in concluding that there was no indirect discrimination against women who had not worked for reasons relating to pregnancy or maternity.

The second is that the court erred in failing to consider whether there was a failure to treat differently persons whose situations are significantly different. The third ground is that there was an overly broad approach to justification by the court in its ruling.

The appeal has been publicly funded, after a crowdfund reaching its target within 48 hours.

Joeli Brearley, CEO and founder of Pregnant Then Screwed, said: “So many women, organisations and even politicians were outraged at the outcome of the verdict in February. Going to appeal isn’t a decision that we have taken lightly, but to allow what we see as such public discrimination to go undisputed just isn’t an option.

“The government has a legal obligation to ensure none of their schemes have a disproportionate impact on anyone with a protected characteristic – the fact that women who have taken a period of maternity leave to do the most important job in the world – raising the next generation – are then subject to a lower payment is quite clearly discrimination and we hope the court of appeal will recognise this.”

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