James v Eastleigh Borough Council

Direct sex discrimination is determined objectively. It occurs where the complainant would have received the same treatment but for their sex. Applying a criterion whose content differs according to sex constitutes direct discrimination, even if it is expressed through neutral shorthand and adopted for a benign reason. An intention or motive to discriminate is unnecessary.

Indirect discrimination concerns a requirement or condition which is itself gender-neutral and is applied equally to both sexes. A discriminatory criterion cannot be treated as an equal condition or as a relevant comparator circumstance. Specific statutory provisions authorising sex-linked concessions do not create a general exception to the prohibition in the Sex Discrimination Act 1975.

The appellant and his wife were both aged 61 when they visited a public swimming pool operated by the respondent council. His wife was admitted free because women attained statutory pensionable age at 60. The appellant had to pay 75p because men did not attain that status until 65. He alleged direct sex discrimination contrary to sections 1(1)(a) and 29 of the Sex Discrimination Act 1975.

The Southampton County Court dismissed the claim. The Court of Appeal dismissed his appeal: [1990] Q.B. 61. It held that pensionable age was an apparently equal condition and that the council's treatment was not on the ground of sex, although a differently pleaded claim for indirect discrimination might be possible. The central issue was whether applying the sex-specific pensionable-age criterion amounted to direct discrimination, irrespective of the council's benign reason for adopting it.

1. By a majority of three to two, the appeal was allowed. Lord Bridge of Harwich delivered the leading speech. Lord Ackner expressly agreed with Lord Bridge and Lord Goff of Chieveley. The orders below were set aside and a declaration of unlawful sex discrimination was made.

2. Per Lord Bridge, the statutory expression “pensionable age” was shorthand for 60 in the case of a woman and 65 in the case of a man. It was therefore an inherently gender-based criterion. A body adopting that criterion could not avoid direct-discrimination liability merely by using the shorthand expression rather than stating the different ages expressly.

3. Per Lord Bridge and Lord Goff, direct discrimination under section 1(1)(a) of the Sex Discrimination Act 1975 is determined objectively by asking whether the complainant would have received the same treatment but for their sex. The appellant would have been admitted free had he been a woman of the same age. The council's benign purpose of assisting pensioners could not alter that conclusion. Reg v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155 was followed.

4. Per Lord Goff, the words “on the ground of sex” encompass both selection because of sex and the application of a gender-based criterion favouring the opposite sex. Ordinarily, it is unnecessary to analyse intention, motive, reason or purpose. If intention must be identified, it is merely the intention to perform the act constituting the less favourable treatment.

5. Per Lord Bridge and Lord Goff, section 1(1)(b) applies to a requirement or condition which is itself gender-neutral and can sensibly be applied equally to both sexes. A gender-based criterion falls under direct discrimination. Under section 5(3), pensionable age could not be treated as a relevant comparator circumstance because it was itself discriminatory; the relevant common circumstance was that both persons were aged 61.

6. Per Lord Bridge, the sex-specific concessions authorised by the Transport Act 1985 and the National Health Service (Charges for Drugs and Appliances) Regulations 1980 did not create a general exception to section 29. In the absence of express statutory authority, sex discrimination in providing goods, facilities or services remained prohibited.

7. Lord Griffiths and Lord Lowry dissented. They considered that “on the ground of sex” required an inquiry into the reason for the treatment. Although motive was not determinative, they regarded the council's operative ground as pensioner status rather than sex and would have dismissed the appeal.

8. The cause was remitted to the Queen's Bench Division to proceed consistently with the declaration. No order as to costs was made.

1. House of Lords: By a majority of three to two, allowed the appeal in James v Eastleigh Borough Council [1990] 2 AC 751, set aside both lower orders, declared that the council had contravened sections 1(1)(a) and 29 of the Sex Discrimination Act 1975, and remitted the cause to the Queen's Bench Division.
2. Court of Appeal: Dismissed the appeal: [1990] Q.B. 61. It rejected the County Court's definition of the relevant section of the public but held that the policy was not direct discrimination. It left open a possible fresh claim for indirect discrimination.
3. Southampton County Court: Judge Tucker QC dismissed the claim, holding that the relevant section of the public comprised persons of statutory pensionable age.