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Government to be sued in maternity leave row

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Written by: Emma Lunn
13/07/2020
Pregnant Then Screwed has issued legal proceedings against the chancellor for indirect sex discrimination in the implementation of the Self-Employed Income Support Scheme (SEISS).

The campaign group, a charity which seeks to end the motherhood penalty, says the government is discriminating against women in the implementation of the SEISS grant.

Pregnant Then Screwed is working with Doughty Street Chambers and law firm Leigh Day after a series of pre-action protocol letters, and exchanges with the government’s legal team.

The government has suggested in its responses that it is lawful to treat maternity related leave as being no different to a period of reduced or no trading for any other reason, such as ill-health or to go on holiday.

Pregnant Then Screwed describes this as “both insulting and unlawful”, and is therefore pressing forward with legal proceedings to ask that a judge rule on such a statement.

Joeli Brearley, founder of Pregnant Then Screwed, said: “The chancellor stated that maternity leave is the same as any other leave when questioned on this in parliament. It is now clear from our exchange with the government’s legal team that this is their firm position.

“If this standpoint is not queried, and ultimately overturned, it sets a very dangerous precedent. Giving birth and raising the next generation is not an illness, it is critical work for a well-functioning society. Both men and women get sick and go on holiday, only women take maternity leave.”

How is the SEISS grant calculated?

The legal claim looks at the way the SEISS grant is calculated. SEISS was announced on 26 March and pays self-employed workers 80% of their profits averaged over the past three tax years, capped at £2,500 a month.

The grant amount is based on an average of the tax returns for 2016/17, 2017/18 and 2018/19.

A second SEISS will be paid in August and will pay self-employed workers up to 70% of their profits for three months, capped at £6,570 in total.

The motherhood penalty

But Pregnant Then Screwed 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.

Pregnant Then Screwed estimates that about 86,640 women are affected by this and has repeatedly asked for SEISS to be changed so that time taken for maternity leave is discounted when average earnings are calculated.

After pressure, the government tweaked the way the grant was calculated in mid-June. The changes meant that parents who took time out of trading to care for their children within the first 12 months of birth would be able to use either their 2017/18 or both their 2016/17 and 2017/18 self-assessment returns as the basis for their eligibility for the SEISS.

But Pregnant Then Screwed says that while the new guidance fixed the eligibility issue for women who had a dip in income in 2018/19 and for those who did not fill in a tax return for 2018/ 2019, it still didn’t fix the problem for all self-employed women who had taken maternity leave in the past three years.

The group said the government had essentially admitted there was a problem with the method of calculating the scheme, but not fixed it.

Maternity leave discrimination

Anna Dews of Leigh Day Solicitors said: “For decades, legislators and the courts have recognised that women require specific protection during periods of maternity leave. Despite that, the chancellor has repeatedly failed to acknowledge the discrimination that is being caused by the way in which the SEISS is currently being implemented.”

The legal challenge is being supported by the Federation of Entertainment Unions and Community Union who all have a high proportion of self-employed members.

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