Precedents Cited

The judgment extensively references foundational cases in discrimination law:

• Barry v Midland Bank PLC: Addressed whether part-time treatment in redundancy payments constituted indirect discrimination. The House of Lords held there was no prima facie discrimination, emphasizing the measure's alignment with its purpose.
• Uppingham Trustees v Shillcock: Similar in nature to Barry, it dealt with pension scheme eligibility and concluded absence of indirect discrimination.
• R (Adiatu) v HM Treasury: Concerned statutory sick pay and found no indirect discrimination, reinforcing that measures applied uniformly do not necessarily discriminate even if they impact certain groups more.
• R (Salvato) v Secretary of State for Work and Pensions: Reinforced the principles of indirect discrimination under ECHR and aligned with the Court of Appeal's reasoning.
• R (SC) v Secretary of State for Work and Pensions: A Supreme Court judgment refining the proportionality test in indirect discrimination cases, emphasizing a nuanced approach.

Legal Reasoning

The Court of Appeal delved into the nature of indirect discrimination under Article 14 of the ECHR. Indirect discrimination arises when a neutral policy disproportionately impacts a protected group—in this case, self-employed women on maternity leave.

The appellants argued that the SEISS's use of average trading profits (ATP) over three years inherently disadvantaged women whose profits were reduced due to maternity-related absences. They invoked both conventional indirect discrimination and "Thlimmenos" discrimination, a term referring to the requirement for unique solutions for uniquely disadvantaged groups.

However, the Court of Appeal concluded that the ATP measure was a neutral policy aimed at fairly assessing eligibility and grant amounts based on historical profitability. The court reasoned that lower past earnings due to maternity leave were not a concealed barrier imposed by SEISS but rather a reflection of genuine income variations. Consequently, the measure did not constitute prima facie indirect discrimination.

Regarding justification, the court found that SEISS met the proportionality test—even under the nuanced approach outlined in R (SC). The scheme's objectives of rapid support delivery, fraud mitigation, and economic stabilization were legitimate aims, and the ATP measure was a proportionate means to achieve these aims given the urgent circumstances.

Impact

This judgment reinforces the principle that government schemes, especially those introduced under emergency conditions, possess a broad margin of appreciation. It underscores that, provided measures are neutral and proportionate to their objectives, they can withstand indirect discrimination claims even if they disproportionately affect certain groups.

For future cases, this decision clarifies that policies relying on historical data to determine eligibility or benefit amounts need not be inherently discriminatory, provided they are justified by legitimate aims and implemented proportionately.

Specifically, for SEISS and similar schemes, the judgment affirms the viability of using averaged historical metrics to assess benefit entitlements without necessitating individual adjustments for circumstances like maternity leave, unless such adjustments are deemed proportionally necessary.

Article 14 of the ECHR

Article 14 prohibits discrimination in the enjoyment of Convention rights on various grounds, including sex, race, and other specified statuses. It ensures that rights and freedoms are exercised without unjustified discrimination.

Indirect Discrimination

Indirect discrimination occurs when a neutral policy disproportionately affects a particular group. Unlike direct discrimination, where policies explicitly target a group, indirect discrimination stems from the unintended consequences of a policy.

Thlimmenos Discrimination

Derived from Thlimmenos v Greece, this form of discrimination requires unique solutions for uniquely disadvantaged groups. It suggests that when a group's specific circumstances lead to disadvantage, tailored measures may be necessary to ensure equality.

Proportionality and Justification

In discrimination law, a policy can be justified if it pursues a legitimate aim and is proportionate in achieving that aim. The principle of proportionality ensures that the means used to achieve governmental objectives are appropriate and necessary, balancing the policy's benefits against its discriminatory impacts.

Margin of Appreciation

This doctrine allows a degree of discretion to national authorities in implementing policies, especially in areas of social and economic policy. Courts typically defer to the judgment of elected bodies unless a policy is manifestly without reasonable foundation.