By: Henry Tufnell

Self-Employment Support Scheme appeal dismissed

17 January 2022 by Henry Tufnell

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

In a judgment handed down on 24 November 2021, the Court of Appeal dismissed an appeal concerning the lawfulness of the Self-Employment Income Support Scheme (“the Scheme”) which was introduced by the Government in April 2020 during the first lockdown as part of its response to the Covid-19 pandemic.

Background

The purpose of the Scheme was to provide payments for persons carrying on a trade where their business had been adversely affected by the pandemic. The payments were to be calculated by reference to the average trading profits (“ATP”) of the preceding full tax years (2016/17, 2017/18, 2018/2019).

The First Appellant, Motherhood Plan, also known as “Pregnant Then Screwed”, is a registered charity with aims to end discrimination faced by women and mothers by campaigning to change legislation, raising awareness in the media and working with employers to change business practice and culture. The Second Appellant, Ms Kerry Chamberlain, worked as a self-employed energy analyst. In the tax year 2017-18, she took a 39-week period of maternity leave after the birth of her second child, and, in the following tax year, she took a further 39-week period of leave after the birth of her third child. As a result of her periods away from work, her trading profits were reduced.

They claimed that contrary to Article 14 of the European Convention on Human Rights (“the Convention”), read with Article 1 of the First Protocol of the Convention, the Scheme unlawfully discriminated against self-employed women who took a period of leave relating to maternity or pregnancy in any of those three preceding full tax years since the level of support granted to them under the Scheme was not representative of their usual profits.

Law and the Culture War

21 September 2021 by Henry Tufnell

The judgment in Forstater v CDG Europe UKEAT/0105/20/JOJ has forced the courts yet again to grapple with the transgender debate. We have already seen the judiciary face up to the challenging issues of whether children with gender dysphoria can consent to receiving puberty blockers (see recent decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363). In the present case, the issue was whether the Claimant’s belief that biological sex is real, important, immutable, and not to be conflated with gender identity was a “philosophical belief” within the meaning of section 10 of Equality Act 2010 (“EqA”).

Background

The claim arose from the Claimant’s statements on Twitter, which manifested her beliefs on the immutability of sex. Her colleagues found these offensive and complained. Her consultancy contract was not renewed, and she brought proceedings before the Central London Tribunal on the basis that she had been discriminated against because of her belief that sex, rather than gender, is fundamentally important and that there are no circumstances in which a trans woman is a woman or a trans man is a man. At a preliminary hearing, the Judge held that the Claimant’s belief was not a “philosophical belief” within the meaning of section 10 EqA.

High Court: Covid self-employed support scheme does not unlawfully discriminate against women

26 February 2021 by Henry Tufnell

R (The Motherhood Plan and Anor) v HM Treasury [2021] EWHC 309 (Admin) — read judgment

In a judgment handed down on 17 February 2021, the High Court has ruled that the Self Employment Income Support Scheme (“the Scheme”) introduced during the coronavirus pandemic does not indirectly discriminate against self-employed women who have taken a period of leave relating to maternity or pregnancy in the last three tax years.

Background

On 30 April 2020, HM Treasury (the Defendant) introduced the Scheme in order to provide payments to those who carried on a business which had been adversely affected by the coronavirus emergency. The Scheme was to be based on average trading profits (“ATP”) of the individual business over the preceding three full tax years (i.e. 2016/17, 2017/18, 2018/2019).

Issues

The Claimants’ case was that the Scheme had a discriminatory impact on women who had taken maternity leave during a relevant tax year. The rationale was that trading profits for the year when maternity leave was taken would have been lower, the result being that the payments under the Scheme were less than they otherwise might have been.

The Claimants therefore challenged the Scheme on two main grounds:

1. The Scheme unlawfully discriminated against self-employed women who have taken a period of leave relating to maternity or pregnancy in the three preceding tax years, contrary to Article 14 read with Article 1 of Protocol 1 of the Human Rights Convention. This discrimination was advanced as taking the form of: (i) “Conventional” indirect discrimination; and/or (ii) discrimination of the Thlimmenos type: the principle that different cases should properly be treated differently.
2. The Defendant breached the Public Sector Equality Duty in section 149 of the Equality Act 2010.

Travel between England and Wales

26 June 2020 by Henry Tufnell

This post is written in response to a comment by a reader, John Burton, of Rosalind English’s post on the latest in the Lockdown challenge launched by Simon Dolan in which Philip Havers QC has been instructed.

We don’t dispense legal advice from the UKHRB, but I thought this was a very interesting question and the editorial board felt it best to try to answer it in a separate post, so here it is, and many thanks to Henry Tufnell, one of our pupil barristers, soon to become one of our new tenants, for taking up the challenge.

Legal aid not available for victim’s family in the 1974 Guildford Pub Bombings inquest

19 December 2019 by Henry Tufnell

The tragic events of the Guildford pub bombings saw four people killed and another 65 injured when the IRA blew up two pubs in 1974. In January of this year, the decision was taken to resume the inquest into the Guilford pub bombings, more than 40 years since it was suspended.

One of the victims of the bombings was Ann Hamilton. Her sister, Cassandra Hamilton, has had her legal aid application refused and will be unable to have legal representation at the inquest. The Government has stated that the coroner could question witnesses on behalf of relatives.

High Court rules that equalising pension ages did not prejudice women

9 October 2019 by Henry Tufnell

Delve & Anor, R (On the Application of) v The Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin) – read judgment

In a judgment handed down on 3^rd October, the High Court has ruled that successive statutes between 1995 and 2014, which legislated to equalise the state pension age between men and women were not discriminatory. The High Court also determined that it was not a matter for the courts to conclude whether the steps taken to inform those affected by the changes in the state pension age for women were inadequate or unreasonable.

Background

The origins of this claim rest in the Old Age and Widows’ Pension Act 1940, where the state pension age for women was lowered from 65 to 60 in response to a campaign by unmarried women in the 1930s. The policy created a relative disadvantage to men, justified by the social conditions at the time.

The Pensions Act 1995 was enacted to equalise the age discrepancy and the methodology followed in subsequent legislation was to stagger the advancement of the pension age by reference to age cohorts. The first change to women’s state pension age contained in the 1995 Act would take effect in 2010, 15 years later.