UK COVID-19 Aid Didn't Shortchange Mothers, Court Says

By David Hansen
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Law360 (February 18, 2021, 7:04 PM EST) -- COVID-19 stimulus payments to self-employed people based on their prior three years of income didn't discriminate against mothers whose income was lowered by taking maternity leave, the U.K. High Court of Justice ruled.

The program as devised by the government didn't intentionally discriminate against mothers, the court ruled Wednesday. Moreover, it added, any discrimination would have been justified by the need to get the payments out as quickly as possible to combat the economic damage caused by the pandemic.

Those bringing the suit were the Motherhood Group, a political organization, and a self-employed analyst who took leave in 2017 and 2018, according to court documents. They argued the U.K.'s Self Employment Income Support Scheme, or SEISS, shortchanged self-employed women who had lowered their incomes by taking maternity leave.

The analyst had received £1,119 ($1,564) per month in SEISS payments, according to court documents, and said she would have been entitled to £4,000 had she not taken maternity leave.

Pregnant women and recent mothers have a special status that can't be compared to men or nonpregnant partners, the plaintiffs said. They argued European Union and domestic law recognize that maternity is different from a medical or nonmedical reason for failing to work and should be protected.

The court disagreed. The program didn't single out mothers for discrimination but treated them as any other applicant, the ruling said. The fact that some women received lower payments reflects the fact that they made less money, and the reasons for that aren't relevant, the court said.

Pregnant women aren't entitled to special treatment under the program to remediate past earnings, the court continued. Their disadvantage occurred in the past, not the present, and the government had no duty to base current benefits on past discrimination. The disadvantage in earnings wasn't caused by the SEISS program, but was independent of it, the court said.

Further, the court said, any discrimination that occurred would have been permissible given the circumstances surrounding the COVID-19 pandemic, which called for payments to be sent quickly.

"Simplicity was the key to this scheme; simplicity meant that the payments had to correlate with data already supplied by self-employed individuals who claimed payment under the scheme to HMRC in their tax returns," the court said. "That kept implementation costs down and enabled swift payments to be made."

The U.K.'s Equality Act 2010 requires public authorities to have "due regard" for the need to eliminate discrimination when passing laws, the court said. A legislative history of the SEISS program shows legislators satisfied that requirement because they raised the issue of self-employed mothers with lower income due to maternity leave, the ruling said.

Legal representatives for the Motherhood Plan and HM Treasury could not be reached for comment.

The Motherhood Plan is represented by Jude Bunting, Clare Duffy and Donnchadh Greene, instructed by Leigh Day and Co.

HM Treasury is represented by Julian Milford QC, Rupert Paines and Zoe Gannon, instructed by the Government Legal Department.

The case is The Motherhood Plan and Ms. Kerry Chamberlain v. Her Majesty's Treasury and Her Majesty's Revenue and Customs, case number CO24442020, in the High Court of Justice.

--Editing by Vincent Sherry.

For a reprint of this article, please contact reprints@law360.com.

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