Justified Discrimination? On R(on the application of Motherhood Plan) v HM Treasury [2021]

By Lee Xuan Yi

HM Revenue and Customs (HMRC) poster for the government's Self-Employment Support Scheme (SEISS)
https://www.theguardian.com/law/2021/nov/24/uk-covid-scheme-indirectly-discriminated-against-maternity-leave-takers-court-rules

On R(on the application of Motherhood Plan) v HM Treasury [2021] EWCA Civ 1703


A recent Court of Appeal case found that the Self Employment Income Support Scheme (SEISS) introduced during the COVID-19 pandemic indirectly discriminated against self-employed women. However, the discrimination was justified by the need for speed, simplicity and ease of verification of profits in the unique circumstances of the pandemic.


What is the SEISS?

After the commencement of the UK’s first lockdown, many businesses suffered significant reductions in turnover. In response, under the Coronavirus Act 2020, the UK government introduced the Self Employment Income Support Scheme (SEISS). Its purpose was to provide payments to the self-employed who had lost or would have lost income because of the pandemic. Payments under the scheme were calculated with average trading profits (ATP) of the individual's business over the preceding three full tax years (2016-2019). In July 2020, SEISS was amended to include those who had not qualified because of the effect of infant care, pregnancy or maternity on their trading profits or total income for the tax year 2018-2019.


What was the Dispute?

Motherhood Plan alleged that SEISS unlawfully indirectly discriminated against self-employed women who had taken maternity leave in any of the three relevant tax years, because those tax years did not represent their usual profits.


The Judgment

It was held that the SEISS was in fact discriminatory, because of the use of ATP as a measure. Maternity leave takers’ earnings in the measured period were disproportionately unrepresentative of their hypothetical earnings had there been no pandemic, resulting in lower payments under the SEISS.


However, this discrimination was justified for several reasons. Principally, the SEISS was enacted in an extreme circumstance where time and practicability were of the essence, justifying the use of an ATP model as the most efficient method possible.