I was horrified when I read that the organisation Pregnant then Screwed (PTS), which had taken the government to court for breaching the anti-discrimination provisions of the European Convention on Human Rights and Equality Act, had lost their case. I was not surprised, however, since successive Conservative governments have strongly resisted many EU directives on women’s rights, and particularly maternity rights, and lagged behind most other EU countries for years, according to recent UNICEF research.
The Self-Employment Income Support Scheme (SEISS) was introduced in March 2020. PTS claim the way the scheme is calculated breaches the requirements of the Equality Act, as it does not exempt periods of maternity leave. This means that 75,000 women who took maternity leave between 2016 and 2019 have lost a proportion of the grant.
Rishi Sunak’s response to the issue in parliament was that self-employed people had “ups and downs” in their earnings “for all sorts of reasons … maternity, ill health or others”. Joeli Brearley from PTS responded that comparing maternity leave to being sick or taking a sabbatical was “insulting” and “dangerous”. However, in her ruling on the case, Mrs Justice Whipple said the government had considered “the plight of women who had recently been on maternity leave” and judged that the group had not been subject to indiscriminate discrimination. The government welcomed the decision, claiming the scheme was “one of the most generous in the world”. I think we have heard that mantra before.
PTS cite the heart-breaking messages they have received from women on this issue: “For some this drop in income has left them and their young family in desperate poverty while their male colleagues receive full benefit.” Being pregnant and having a baby during a pandemic is challenging enough − my youngest daughter experienced it and she had a job to return to − but if you are a self-employed woman expecting the state to protect and support you during this time, then you will have felt bitterly disappointed and betrayed.
Loss of EU protections
Whether this betrayal of pregnant women is negligent or wilful, had we still been in the European Union this case, like others before it, could have been taken to the European Court of Justice (ECJ). Now, in a post-Brexit landscape, it is unclear how things will pan out. This is the red tape that Brexiteers wanted to tear up – particularly the provisions pertaining to maternity, parental leave and women’s rights generally – though ministers refute this. Just before the referendum in June 2016, Michael Ford QC advised: “It is difficult to overstate the significance of EU law in protecting against sex discrimination.”
The UK government has been taken to court on this numerous times. The ECJ repeatedly acted to correct UK domestic courts which had ruled against female workers’ rights, as examples in a TUC report show; but UK courts repeatedly failed to recognise that equality can mean treating women differently from men in certain cases. As Stephen Simpson points out in highlighting specific ECJ cases which have shaped UK employment law: “The ECJ made it clear that treating a women unfavourably because of pregnancy or maternity leave is direct sex discrimination.” ECJ rulings established a clear principle, currently enshrined in the Equality Act, that pregnancy and maternity are protected characteristics and women do not need a non-pregnant comparator to establish discrimination.
Tamsin Perrett, a freelance editor who had a son in 2017, is one of the many self-employed women who have fallen through the cracks because of the imbalance in SEISS payments. She stresses: “What I am asking for is parity.” But in order to get parity, what Justice Whipple has failed to take on board in the PTS case is EU equality legislation, which protects women who have taken maternity leave from being treated in the same way as a man taking sick leave, thereby giving women added protection. Whipple’s judgement not only compared “a woman who had been on maternity leave…with someone who had not”, but also claimed that having lower earnings in the past was not caused by the SEISS scheme itself.
An overwhelming 80 per cent of 18-24 year-old women voted to remain in the EU, perhaps fearing their rights would be less protected outside it. They have been proved right in the PTS case.
Joeli Brearley from PTS emphasises: “We need to remember that maternity is of critical importance to society.” That was certainly what I believed after giving birth to three children and continuing my demanding social work career. I started to run workshops for women returning to work and tried to get employers to accept the need for flexible working, improved childcare, after-school provisions and nurseries. Thirty-four years on, it is eye-wateringly shocking to see how little progress, if any, has been made. Brearley argues that “basic sexism” still exists – “there are deeply entrenched gender stereotypes” – and that wholesale changes, such as paid leave for fathers, reduced childcare charges and shorter, flexible working weeks need to be introduced.
Self-employed women and their children and families have been betrayed. They put their faith in the court case that PTS believed they would win, because the law is on their side: so far, the Equality Act is still in place, though changes are being made to it. It is the judge’s interpretation that will need to be challenged.
Pregnant then Screwed are considering their options, but to appeal on behalf of women will be costly. Keir Starmer, the new Labour leader, continues his radio silence on the issue and meanwhile self-employed women are waking up to the situation they and their families are facing. What else will women lose as red tape is torn up and we move away from protective EU equality legislation? Who will save us from our government now?