Who will be screwed in SEISS High Court legal challenge?

Interesting goings on at the High Court in London where the brilliantly named campaigning charity ‘Pregnant Then Screwed’ has commenced judicial review proceedings against the Chancellor of the Exchequer Rishi Sunak. The action relates to alleged gender discrimination within SEISS which is the income protection scheme introduced by the Chancellor on 30^th April 2020 to protect the earnings of the self-employment during the pandemic.

The issue highlighted by the group is that SEISS calculates the entitlement payable to individuals with a crude averaging of their self-employed earnings over a 3-year reference period. There is no allowance made for non-working periods due to maternity (or, for that matter, for chronic illness). This means that a female contractor who has taken time off in the last 3 years to look after a baby will receive considerably less under the scheme than a male equivalent who has continued to work.  According to Jude Bunting from Doughty Street Chambers who is representing the charity:

‘Women who have not worked for reasons relating to maternity receive significantly smaller grants under the SEISS than they would otherwise be entitled to.’

The challenge is being opposed by the Chancellor firstly with the old chestnut that the policy is not discriminatory as it applies equally to men and women. This is true only if one accepts that men and women are equally likely to take time out from work to look after children. This is, to put it mildly, unlikely to be the case any time soon.

Beyond that the Chancellor is relying on a justification argument that the support offered by SEISS was, in the words of their QC Julian Milford ‘a policy decision…taken to utilise a proxy calculation that best represented the income foregone’. This looks weak. Justification arguments are supposed to state why a non-discriminatory measure is not viable. It is difficult to see why the Chancellor could not have included some dispensation for women in the 12 months after childbirth. There would have been a cost to the Treasury but not a significant one in comparison with the mind-boggling sums already spent on Furlough and SEISS.  

All of this is interesting on a number of levels. As with the UNISON fees challenge it shows that the law can and should be used as a tool to challenge government measures where they are discriminatory or breach basic human rights. It also shows that the ‘self-employed’ should not be exempt from the rights and protections which apply to the majority of the working population.

We will await the High Court’s decision with interest and in the hope that it will be Chancellor and not the working women of Britain who will be ‘screwed’.

This blog was brought to you by Mark Alaszewski, Solicitor, didlaw.