COVID-19: SEISS indirectly discriminatory against new mothers but justified

In?R (on the application of Motherhood Plan) v HM Treasury [2021] EWCA Civ?1703, the Court of Appeal held that the Self-Employment Income Support Scheme (SEISS)introduced during the COVID-19 pandemic indirectly discriminated against self-employed women who had recently taken maternity leave. However, the discrimination was justified by the need for speed, simplicity and ease of verification of profits in the unique circumstances of the pandemic.

Under the SEISS, grants were awarded to self-employed individuals based on average trading profits (ATP) in the previous three full tax years. The scheme was amended in July 2020 to include those who had not qualified because of the effect of childcare, pregnancy or maternity on their trading profits or total income for the tax year 2018-2019.

The application was brought by a self-employed mother and a maternity rights charity. They argued that, contrary to the European Convention on Human Rights, it was indirectly discriminatory to calculate grants based on ATP in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to.

The Court of Appeal held that the High Court had been wrong to find that the use of ATP did not constitute indirect discrimination. The judge had found that the disadvantage to new mothers was not "caused by the scheme itself" but by their reduced earnings while on maternity leave.

However, the High Court had reached the correct conclusion on justification. The indirect discrimination was justified because the SEISS was devised in the extreme and unique circumstances of the pandemic, where time was of the essence.

So there you have it.