On 24 November 2021, the Court of Appeal handed down its judgment in the case of The Motherhood Plan and Kerry Chamberlain v Her Majesty’s Treasury and Her Majesty’s Revenue and Customs, holding that the UK government’s Covid-19 self-employed income support scheme (SEISS) had discriminated against new mother. However, the Court of Appeal accepted that this was justified due to the emergency nature of the scheme, introduced at the start of the pandemic.

The facts

The Motherhood Plan, otherwise known as ‘Pregnant then Screwed’, is a registered charity which campaigns for pregnant women and new mothers’ rights, in particular within employment law. It aims to end the discrimination experienced by women in this area of the law. They raised an action for Judicial Review of the SEISS alongside Kerry Chamberlain, a working mother who believed she had been discriminated against by the scheme. Ms Chamberlain was a self-employed energy analyst with three young children. She had a child in 2017 and then in 2018, taking maternity leave of 39 weeks after each child was born.

The SEISS

The UK government introduced the Covid-19 self-employed income support scheme in April 2020. It offered grants to self-employed workers based the self-employed worker’s average trading profits from the tax years of 2016/17, 2017/18 and 2018/19. This meant that if a worker’s income had been reduced in any of those tax years, it would impact on the SEISS payment received.

Ms Chamberlain’s income had reduced over the tax years of 2017/18 and 2018/19 due to being on maternity leave. This meant that the support she could claim from the scheme was limited. It was estimated that 70,000 mothers were in a similar position as a result of the SEISS formulation.

The issues

The Motherhood Plan and Ms Chamberlain raised a judicial review arguing that the scheme had:

(i) Unlawfully discriminated against self-employed women who had taken maternity leave in the three preceding tax years and that this was a breach of the European Convention on Human Rights.

(ii) Breached the Public Sector Equality Duty in section 149 of the Equality Act 2010.

The judgment

The Court of Appeal agreed with the Claimants that the calculation used to determine self-employed workers’ entitlement disproportionately impacted on new mothers and that it amounted to indirect discrimination. Though the Court of Appeal accepted that the scheme had indirectly discriminated against pregnant women and new mothers through its calculation, it ultimately decided that this did not amount to unlawful indirect discrimination. This is because the Court of Appeal viewed the beginning of the pandemic as ‘extreme if not unique circumstances’ which justified the indirect discrimination.

Why is this important?

Though on this occasion the Court of Appeal accepted that the circumstances of the pandemic were such that the indirect discrimination should not be considered unlawful, this sets an important precedent going forward. If the government were to introduce a similar policy of similar detriment to new working mothers, without the urgency of passing legislation created by the pandemic, it might well be considered unlawful.

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