James v Eastleigh Borough Council

The House of Lords held that a policy of offering free swimming to persons of "pensionable age" (defined by statute as 60 for women and 65 for men) amounted to direct discrimination on the ground of sex contrary to section 1(1)(a) and section 29 of the Sex Discrimination Act 1975. The court rejected the argument that the council's benign motive or the use of the statutory shorthand "pensionable age" removed the treatment from the ambit of direct discrimination and held that a gender‑based criterion is itself discrimination "on the ground of sex." The majority treated the question objectively (would the complainant have been treated the same but for his sex) and explained that pensionable age cannot be treated as a relevant circumstance under section 5(3) when making comparisons under section 1.

The claimant (Mr James), aged 61, alleged that Eastleigh Borough Council discriminated against him by charging him for admission to the municipal swimming pool while admitting his wife, also aged 61, free, because the council offered free admission to persons of "pensionable age" (60 for women, 65 for men). The claim was brought under the Sex Discrimination Act 1975, principally sections 1(1)(a) and 29. At first instance Judge Tucker dismissed the claim. The Court of Appeal dismissed the appellant's appeal, but on a ground developed by the court held that the council's policy was not direct discrimination because the council applied a sex‑neutral condition (pensionable age) and any disparate impact was to be considered under section 1(1)(b); the Court of Appeal declined to remit the case to the county court.

The House of Lords (majority) allowed the appeal. Issues framed included: (i) whether the council's conduct amounted to discrimination "on the ground of sex" under section 1(1)(a); (ii) whether the council's reliance on the statutory concept of "pensionable age" meant the concession was not direct discrimination but only potentially indirect discrimination under section 1(1)(b); and (iii) the relevance of the council's subjective motive.

• Nature of the relief sought: a declaration and remedy for unlawful sex discrimination under the Sex Discrimination Act 1975.
• Court's reasoning: the statutory pensionable age criterion (60 for women, 65 for men) is itself gender‑based and therefore any policy employing that criterion treats women and men differently "on the ground of sex." The majority applied an objective "but for" style comparison under section 1 and section 5(3) (compare persons in the same relevant circumstances, here both aged 61). Subjective motive was held irrelevant to liability for direct discrimination; section 1(1)(b) was inapplicable because the requirement relied upon was itself discriminatory between the sexes. The House set aside the lower courts' orders, declared that the council had discriminated contrary to sections 1(1)(a) and 29, ordered no costs and remitted the cause to the Queen's Bench Division to act consistently with the judgment.

The House noted wider implications for public and statutory concession schemes and emphasised that in the absence of express statutory authority discrimination based on differing statutory pension ages is unlawful.

Appeal allowed. The majority held that the council's policy of offering free admission according to "pensionable age" (60 for women, 65 for men) constituted direct discrimination "on the ground of sex" contrary to section 1(1)(a) and section 29 of the Sex Discrimination Act 1975 because the pensionable age criterion is itself gender‑based; subjective motive is irrelevant. The Court of Appeal and county court orders were set aside, a declaration of discrimination was made, no order as to costs, and the matter was remitted to the Queen's Bench Division.

County Court (Southampton, Judge Martin Tucker Q.C.) – claim dismissed (28 October 1987). Court of Appeal – appeal dismissed; reasoning recorded at [1990] Q.B. 61. House of Lords – appeal allowed, judgment reported [1990] UKHL 6 (14 June 1990).