James (Appellant)
v.
Eastleigh Borough Council (Respondents)
JUDGMENT
Die Jovis 14° Junii 1990
Upon Report from the Appellate Committee to whom was
referred the Cause James against Eastleigh Borough Council,
That the Committee had heard Counsel on Wednesday the 28th and
Thursday the 29th days of March last, upon the Petition and
Appeal of Peter James, of 21 Grosvenor Road, Chandlers Ford,
Eastleigh, Hampshire, praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of Her
Majesty’s Court of Appeal of the 26th day of April 1989, might
be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioner might have such other relief
in the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the case of Eastleigh
Borough Council lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 26th day of April 1989 and the Order of His
Honour Judge Martin Tucker Q.C. of the 28th day of October
1987 complained of in the said Appeal be, and the same are
hereby, Set Aside and that it be declared “that the
respondents discriminated against the plaintiff on the ground
of his sex contrary to sections 1(1) (a) and 29 of the Sex
Discrimination Act 1975 by refusing to provide him with
swimming facilities on the same terms as were normal in the
case of women, in that men aged 60 to 65 (including the
plaintiff) were charged for entry, whereas women aged 60 to 65
were admitted free.” And it is further Ordered, That there be
no Order as to costs. And it is also further Ordered, That
the Cause be, and the same is hereby, remitted back to the
Queen’s Bench Division of the High Court of Justice to do
therein as shall be just and consistent with this Judgment.
Cler: Parliamentor
Judgment: 14.6.90
HOUSE OF LORDS
JAMES
(APPELLANT)
v.
EASTLEIGH BOROUGH COUNCIL
(RESPONDENTS)
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Goff of Chieveley
Lord Lowry
LORD BRIDGE OF HARWICH
My Lords,
In November 1985 the plaintiff and his wife were both aged
61. They went one day in that month to the Fleming Park
Leisure Centre where there is a public swimming pool operated by
the respondent council. Being of pensionable age the plaintiff’s
wife was admitted free. Not being of pensionable age the
plaintiff had to pay 75p for admission. The plaintiff brought
proceedings against the council claiming that they had unlawfully
discriminated against him on the ground of his sex contrary to
section l(l)(a) and section 29 of the Sex Discrimination Act 1975.
The claim was heard by Judge Tucker Q.C. in the Southampton
County Court who dismissed it. An appeal against his judgment
was dismissed by the Court of Appeal (Sir Nicolas Browne-
Wilkinson V.-C., Parker and Nourse LJJ.) [1990] Q.B. 61. The
plaintiff now appeals by leave of your Lordships’ House.
At first glance this may seem to be a very trivial matter.
But the truth is to the contrary. It is an important test case
brought with the backing of the Equal Opportunities Commission in
performance of their statutory functions under the Act. The
phrase “pensionable age” is a term of art derived from the
definition in section 27(1) of the Social Security Act 1975 where it
means: “(a) in the case of a man, the age of 65; and (b) in the
case of a woman, the age of 60.” In this sense it not only
governs the age at which persons can first qualify for their state
pensions, but is also used as the basis on which men and women
qualify for a variety of concessions to the elderly such as free or
reduced travel and free prescriptions under the National Health
Service. The commission’s purpose in this litigation is to establish
the principle for which they contend that in any sphere of activity
in which discrimination on the ground of sex is prohibited by the
Sex Discrimination Act 1975 the practice of denying to men
between the ages of 60 and 65 benefits which are offered to
women between those ages is unlawful unless it is authorised by
other express statutory provisions.
The provisions of the Sex Discrimination Act 1975 which
have to be construed are the following:
“1(1) A person discriminates against a woman in any
circumstances relevant for the purposes of any provision of
this Act if – (a) on the ground of her sex he treats her less
favourably then he treats or would treat a man, or (b) he
applies to her a requirement or condition which he applies
or would apply equally to a man but – (i) which is such that
the proportion of women who can comply with it is
considerably smaller than the proportion of men who can
comply with it, and (ii) which he cannot show to be
justifiable irrespective of the sex of the person to whom it
is applied, and (iii) which is to her detriment because she
cannot comply with it. …
“2(1) Section 1, and the provisions of Parts II and III
relating to sex discrimination against women, are to be read
as applying equally to the treatment of men, and for that
purpose shall have effect with such modifications as are
requisite.
“5(3) A comparison of the cases of persons of different sex
. . . under section 1(1) . . . must be such that the relevant
circumstances in the one case are the same, or not
materially different, in the other.
“29(1) It is unlawful for any person concerned with the
provision (for payment or not) of goods, facilities or services
to the public or a section of the public to discriminate
against a woman who seeks to obtain or use those goods,
facilities or services – … (b) by refusing or deliberately
omitting to provide her with goods, facilities or services of
the like quality, in the like manner and on the like terms as
are normal in his case in relation to male members of the
public or (where she belongs to a section of the public) to
male members of that section. (2) The following are
examples of the facilities and services mentioned in
subsection (1) – (a) access to and use of any place which
members of the public or a section of the public are
permitted to enter … (e) facilities for entertainment,
recreation or refreshment …”
The case for the plaintiff is that the council were refusing
to provide him with facilities, viz. admission to the swimming
pool, on the like terms as were normal in relation to female
members of the public of the same age as himself. This, it is
said, was a clear contravention of section 29(1) and section l(l)(a)
because in the same relevant circumstances the council were
treating the plaintiff on the ground of his sex less favourably than
they would treat a woman. If he had been a woman aged 61, he
would have been admitted free. Because he was a man aged 61
he was charged 75p for admission.
The main ground on which the council sought to contest the
claim in the county court and the ground on which they succeeded
there was that the relevant “section of the public” which fell for
consideration under section 29(1) was the section of the public
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comprising persons of statutory pensionable age. This ground was
rejected by the Court of Appeal. Sir Nicolas Browne-Wilkinson V.-
C., delivering a judgment with which Parker and Nourse L.JJ.
agreed, said, at p. 73:
“… it is not permissible for a defendant in such a case
to seek to define the section of the public to which it
offers services in terms which are themselves discriminatory
in terms of gender. If this were not so it would be lawful,
for example, to provide free travel for men but not for
women on the ground that the facility of free travel is only
being provided for a section of the public comprising men.
Whatever else may be meant by a ‘section of the public,’ in
my judgment it cannot mean a class defined by reference to
sex or, under the Race Relations Act 1976, by reference to
race. …”
This is clearly right and this ground was not pursued by the
council before your Lordships.
In the Court of Appeal the case took an entirely new turn
and the court found in favour of the council on a ground first
raised in argument by the court themselves. It had been common
ground in the county court that the concession offered by the
council to persons of pensionable age was discriminatory in favour
of women and against men under section 1 of the Sex
Discrimination Act 1975. But the Court of Appeal held that the
council’s less favourable treatment of a man than a woman was
not “on the ground of his sex” and that there had accordingly been
no direct discrimination contrary to section l(l)(a). The condition
which the local authority applied to persons resorting to their
swimming pool that in order to qualify for free admission they
should be of pensionable age was, as the court held, a condition
applied equally to men and women. The condition, therefore,
would only amount to unlawful discrimination under section 1(1)(b)
if the appellant could show “(i) . . . that the proportion of men
who can comply with it is considerably smaller than the proportion
of women who can comply with it” and if the local authority
failed to show the condition “(ii) . . . to be justifiable irrespective
of the sex of the person to whom it is applied.” The case for the
appellant had not been pleaded or presented on this basis in the
county court. The Court of Appeal, therefore, declined to remit
the case to the county court and left it to the appellant and the
Equal Opportunities Commission to bring fresh proceedings based
on a fresh visit to the swimming pool if so advised.
In reaching these conclusions the judgment of Sir Nicolas
Browne-Wilkinson V.-C. first sets the scene in the following terms,
at p. 73:
“There is no suggestion that the reason for the council
adopting its policy was a desire to discriminate against men.
The council’s reason for giving free swimming to those of
pensionable age was to give benefits to those whose
resources would be likely to have been reduced by
retirement. The aim was to aid the needy, whether male or
female, not to give preference to one sex over the other.
Moreover the condition which had to be satisfied in order to
qualify for free swimming did not refer expressly to sex at
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all. The condition was simply that the applicant had to be
of pensionable age. The undoubtedly discriminatory effect
of that condition only emerges when one gets to the next
question, i.e. at what age do men and women become
pensionable? The question is whether the council’s policy
amounts to direct discrimination ‘on the ground of his sex’
within section l(l)(a) or indirect discrimination within
section 1(1)(b) by reasons of the council having imposed a
condition on men and women alike with which a considerably
smaller proportion of men than women can comply.”
The Vice-Chancellor summarised Mr. Lester’s submissions for the
appellant as follows, at p. 74:
“Mr. Lester, for the plaintiff, forcefully submitted that
there is direct discrimination in this case. He submitted
that discrimination is ‘on the ground of sex within section
l(l)(a) if the sex of the plaintiff is a substantial cause of
the less favourable treatment. In this context, he says, the
correct question is ‘what would the position have been but
for the sex of the plaintiff?’ If the position would be
different if the plaintiff’s sex were different, that is direct
discrimination.”
I hope I do justice to the judgment if I recite only what seem to
me to be the two essential passages, at pp. 74 and 75, rejecting
these submissions as follows:
“In my judgment section 1(1)(a) is looking to the case where,
subjectively, the defendant has treated the plaintiff less
favourably because of his or her sex. What is relevant is
the defendant’s reason for doing an act, not the causative
effect of the act done by the defendant. . . .
“There is a further objection to Mr. Lester’s construction of
the section. If there is direct discrimination in every case
where there is a substantial causative link between the
defendant’s treatment and the detriment suffered by the
plaintiff as a result of his sex I can see no room for the
operation of subsection (l)(b). In every case in which a
sexually neutral condition in fact operates differentially and
detrimentally to one sex as opposed to the other, the
imposition of such condition would be a substantial cause of
detriment to the plaintiff by reason of his or her sex, i.e. it
would fall within Mr. Lester’s causation test and therefore
constitute direct discrimination under subsection (l)(a). This
plainly was not the intention of Parliament which was
drawing a clear distinction between, on the one hand, those
cases where the defendant expressly or covertly acts by
reference to the sex of the plaintiff and, on the other,
those cases where the defendant acted on the grounds not
expressly or covertly related to sex but his actions have
caused a disparate impact as between the sexes.”
The fallacy, with all respect, which underlies and vitiates
this reasoning is a failure to recognise that the statutory
pensionable age, being fixed at 60 for women and 65 for men, is
itself a criterion which directly discriminates between men and
women in that it treats women more favourably than men “on the
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ground of their sex.” This was readily conceded by Mr. Beloff and
is indeed self-evident. It follows inevitably that any other
differential treatment of men and women which adopts the same
criterion must equally involve discrimination “on the ground of
sex.” As Mr. Beloff was again constrained to concede, the council
would certainly have discriminated directly in favour of women and
against men on the ground of their sex if they had expressly made
their concession of free entry to the swimming pool available to
women aged 60 and to men aged 65. He submits that the
availability of the statutory concept of pensionable age in the
Social Security Act 1975 to denote the criterion on which the
concession is based and the fact that pensionable age, although
now discriminatory, will not necessarily always remain so, enables
the council to escape the charge of direct discrimination “on the
ground of sex.” But this simply will not do. The expression
“pensionable age” is no more than a convenient shorthand
expression which refers to the age of 60 in a woman and to the
age of 65 in a man. In considering whether there has been
discrimination against a man “on the ground of his sex” it cannot
possibly make any difference whether the alleged discriminator
uses the shorthand expression or spells out its full meaning.
The Court of Appeal’s attempt to escape from these
conclusions lies in construing the phrase “on the ground of her sex”
in section l(l)(a) as referring subjectively to the alleged
discriminator’s “reason” for doing the act complained of. As
already noted, the judgment had earlier identified the council’s
reason as “to give benefits to those whose resources would be
likely to have been reduced by retirement” and “to aid the needy,
whether male or female.” But to construe the phrase, “on the
ground of her sex” as referring to the alleged discriminator’s
reason in this sense is directly contrary to a long line of authority
confirmed by your Lordships’ House in Reg. v. Birmingham City
Council, Ex parte Equal Opportunities Commission [1989]] A.C.
1155. In that case the council, as local education authority, was
held to have discriminated against girls under section l(l)(a). At
the council’s independent, single-sex grammar schools there were
more places available for boys than girls. Consequently the
council were obliged to set a higher pass mark for girls than boys
in the grammar school entrance examination. In his speech,
expressing the unanimous opinion of the House, Lord Goff of
Chieveley said, at pp. 1193-1194:
“The first argument advanced by the council before your
Lordship’s House was that there had not been, in the
present case, less favourable treatment of the girls on the
grounds of sex. Here two points were taken. It was
submitted … (2) that, if that burden had been discharged,
it still had to be shown that there was less favourable
treatment on grounds of sex, and that involved establishing
an intention or motive on the part of the council to
discriminate against the girls. In my opinion, neither of
these submissions is well-founded. … As to the second
point, it is, in my opinion, contrary to the terms of the
statute. There is discrimination under the statute if there
is less favourable treatment on the ground of sex, in other
words if the relevant girl or girls would have received the
same treatment as the boys but for their sex. The
intention or motive of the defendant to discriminate, though
– 5 –
it may be relevant so far as remedies are concerned … is
not a necessary condition of liability; it is perfectly possible
to envisage cases where the defendant had no such motive,
and yet did in fact discriminate on the ground of sex.
Indeed, as Mr. Lester pointed out in the course of his
argument, if the council’s submission were correct it would
be a good defence for an employer to show that he
discriminated against women not because he intended to do
so but (for example) because of customer preference, or to
save money, or even to avoid controversy. In the present
case, whatever may have been the intention or motive of
the council, nevertheless it is because of their sex that the
girls in question receive less favourable treatment than the
boys, and so are the subject of discrimination under the Act
of 1975. This is well established in a long line of authority:
see, in particular, Jenkins v. Kingsgate (Clothing
Productions) Ltd. [1981] 1 WLR 1485, 1494, per Browne-
Wilkinson J., and Ex parte Keating, per Taylor J., at p. 475;
see also Ministry of Defence v. Jeremiah [1980] Q.B. 87, 98
per Lord Denning M.R. I can see no reason to depart from
this established view.”
Lord Goff’s test, it will be observed, is not subjective, but
objective. Adopting it here the question becomes: “Would the
plaintiff, a man of 61, have received the same treatment as his
wife but for his sex?” An affirmative answer is inescapable.
The judgment of the House in the Reg v. Birmingham City
Council, Ex parte Equal Opportunities Commission was delivered
after the instant case had been argued in the Court of Appeal but
before they delivered their judgment. They did not, therefore,
have the advantage of argument as to the effect of the decision.
They sought to distinguish it. But it is, in my opinion, quite
indistinguishable. It would not have availed the Birmingham City
Council to say that the condition for grammar school entry was to
have passed the entrance examination because the pass mark was
set at different levels for boys and girls and discriminated against
girls on the ground of their sex. By precise parity of reasoning it
does not avail the council in this case to say that the condition
for free admission to the swimming pool is to have attained
pensionable age because pensionable age is set at different levels
for men and women and discriminates against men on the ground
of their sex. Similarly the subjective reason for the differential
treatment in both cases is quite irrelevant. The Birmingham City
Council had the best of motives for discriminating as they did.
They could not otherwise have matched the entry of boys and girls
to the grammar school places available. The council in this case
had the best of motives for discriminating as they did. They
wished to benefit “those whose resources were likely to have been
reduced by retirement” and “to aid the needy, whether male or
female.” The criterion of pensionable age was a convenient one to
apply because it was readily verified by possession of a pension
book or a bus pass. But the purity of the discriminator’s
subjective motive, intention or reason for discriminating cannot
save the criterion applied from the objective taint of
discrimination on the ground of sex.
The question of indirect discrimination under section l(l)(b)
arises only where the “requirement or condition” applied by the
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alleged discriminator to a person of one sex is applied by him
equally to a person of the other sex. Pensionable age cannot be
regarded as a requirement or condition which is applied equally to
persons of either sex precisely because it is itself discriminatory
between the sexes. Whether or not the proportion of men of
pensionable age resorting to the council’s swimming pool was
smaller than the proportion of women of pensionable age was quite
irrelevant. Women were being treated more favourably than men
because they attained the age to qualify for free admission five
years earlier than men.
The Court of Appeal detected and properly criticised the
error made by the trial judge in the application of section 29 in
that he sought to define the “section of the public” to whom
services were provided by the council “in terms which are
themselves discriminatory in terms of gender.” But they fell into
the same error themselves in making the comparisons necessary
under section 1. Section 5(3) requires that in comparing the cases
of persons of different sex under section 1(1) the relevant
circumstances must be the same. Because pensionable age is itself
discriminatory it cannot be treated as a relevant circumstance in
making a comparison for the purpose of section 1 any more than
it can be used to define a “section of the public” under section
29. It is only by wrongly treating pensionable age as a relevant
circumstance under section 5(3) that it is possible to arrive at the
conclusion that the provision of facilities on favourable terms to
persons of pensionable age does not involve direct discrimination
under section 1(1)(a) but may involve indirect discrimination under
section l(l)(b). On a proper application of section 5(3) the
relevant circumstance which was the same here for the purpose of
comparing the treatment of the plaintiff and his wife was that
they were both aged 61.
Statutory pensionable age is still used in some other
statutory contexts, besides the Social Security Act 1975, as the
basis of entitlement to enjoy certain other benefits or concessions.
Thus, under travel concession schemes established by local
authorities pursuant to section 93 of the Transport Act 1985 men
over 65 and women over 60 are eligible to receive concessions:
section 93(7)(a). Similarly by regulation 7 of the National Health
Service (Charges for Drugs and Appliances) Regulations 1980 (S.I.
1980 No. 1503) men over 65 and women over 60 are exempt from
the charges imposed by the Regulations. But it is impossible to
infer from these or any other specific statutory provisions
requiring or authorising discrimination in defined circumstances the
existence of a general exception to the prohibition of sex
discrimination in the provision of goods, facilities and services
imposed by section 29 of the Sex Discrimination Act 1975 such
that discrimination in favour of women and against men between
the ages of 60 and 65 is always permitted. In the absence of
express statutory authority derived from some other enactment,
such discrimination is prohibited.
I would accordingly allow the appeal, set aside the order of
the courts below and declare that the council discriminated against
the plaintiff on the ground of his sex contrary to sections l(l)(a)
and 29 of the Sex Discrimination Act 1975 by refusing to provide
him with swimming facilities on the same terms as were normal in
the case of women, in that men aged 60 to 65 (including the
– 7 –
plaintiff) were charged for entry, whereas women aged 60 to 65
were admitted free. I would propose that there should be no
order for the payment of costs.
LORD GRIFFITHS
My Lords,
I am unable to agree with the majority of your Lordships
that this appeal should be allowed. When the Eastleigh Borough
Council decided to allow free swimming facilities to persons of
pensionable age they did not do so because they wished women
over 60 to swim free because they were women or to deny that
privilege to men until they were 65 because they were men. The
council were following the very widespread and, in my view,
wholly admirable practice of treating old age pensioners with
generosity. The council were giving free swimming to people
because they were pensioners not because they were either men or
women.
When people are living on a pension they are almost always
less well off than when in employment and less able to afford
leisure and travel facilities although they may have more time in
which to enjoy them. When the Sex Discrimination Act 1975 was
before Parliament every member of both Houses must have known
that it was an attractive feature of our national life that those
who provided entertainment and travel facilities gave generous
treatment to old age pensioners by providing them free or at
concessionary rates. I cannot believe that it was the intention of
Parliament that this benevolent practice should be declared to be
unlawful – but such is the result of your Lordships’ decision.
I appreciate of course that adopting pensionable age as the
criterion to judge whether a person is living on a pension is to
adopt a broad brush approach. But given that it is the intention
to give the concession to those who are living on a pension and
thus of reduced means, it appears to me to be the only practical
criterion to adopt. It would be quite impossible to interrogate
every person as to whether they were or were not living on a
pension or to apply some other form of means test before
admitting them to the swimming pool. I believe that against the
pattern of employment in this country, and in particular the
pattern as it was in 1975, pensionable age is a fair test to apply
to establish those who are likely to be living on reduced incomes,
and that it is a fair assumption that those of pensionable age are
living on pensions. Where I entirely part company from your
Lordships is in the view that the council used the words
“pensionable age” as “no more than a convenient shorthand
expression which refers to the age of 60 in a woman and to the
age of 65 in a man.” This was not the reason the council
referred to “pensionable age.” In my view the reference to
“pensionable age” carries with it the unmistakable intention of the
council to give the free swimming facilities to people because they
are pensioners and not because they are men or women.
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Suppose the council had resolved to allow free swimming to
everyone living on a pension. That would surely not be
discriminating on the “grounds of sex” under section l(l)(a).
Suppose that the council had added that it would accept proof of
pensionable age as sufficient proof of living on a pension – would
that have converted their decision to one on the “grounds of sex.”
Again, I would have thought the answer was manifestly not,
assuming of course that such an assumption was reasonable.
Whether a person treats another less favourably “on the
grounds of sex” is a question that does not permit of much
refinement. It means did they do what they did because she was
a woman (or a man). It is a question of fact which has to be
answered by applying common sense to the facts of the particular
case. I agree that the motive behind the action is not
determinative although it may cast light on the question – see in
particular the discussion of the question in the judgment of Woolf
J. in Reg. v. Commission for Racial Equality, Ex parte
Westminster City Council [1984] I.C.R. 770.
I was a party to the decision in Reg. v. Birmingham City
Council, Ex parte Equal Opportunity Commission [1989] AC 1155,
and agreed with the speech of Lord Goff of Chieveley. But in
that speech I had read Lord Goff as using intention and motive
interchangeably and had obviously failed to appreciate the full
significance that would be attached to a “but for” test. In the
Birmingham case no one could doubt that it was because of their
sex that it was more difficult for girls to get a place in a
grammar school than boys: there were more places for boys than
there were for girls and that was the end of it. So a “but for”
test in that case led to the result that girls were being
discriminated against, and the fact that the council were very
unhappy about the situation and did not wish to discriminate did
not alter the fact that they were discriminating. That case
establishes that the subjective motive is not determinative in a
case of sex discrimination under section 1(1)(a). But on reflection
I do not think that a “but for” test will in all cases answer the
question – was the favourable treatment “on the grounds of sex.”
Obviously imposing a retirement age of 60 on women and 65
on men is discriminatory on the grounds of sex. It will result in
women being less well off than men at 60. But what I do not
accept is that an attempt to redress the result of that unfair act
of discrimination by offering free facilities to those disadvantaged
by the earlier act of discrimination is, itself, necessarily
discriminatory, “on the grounds of sex.” The question in this case
is did the council refuse to give free swimming to the plaintiff
because he was a man, to which I would answer, no, they refused
because he was not an old age pensioner and therefore could
presumably afford to pay 75p to swim.
The result of your Lordships’ decision will be that either
free facilities must be withdrawn from those who can ill afford to
pay for them or, alternatively, given free to those who can well
afford to pay for them. I consider both alternatives regrettable.
I cannot believe that Parliament intended such a result and I do
not believe that the words “on the grounds of sex” compel such a
result.
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Since writing this short speech I have had the advantage of
reading the much fuller discussion of the problem contained in the
speech of Lord Lowry. I agree entirely with his reasoning and
conclusion.
I would dismiss this appeal.
LORD ACKNER
My Lords,
I so entirely agree with the views expressed by my noble
and learned friends Lord Bridge of Harwich and Lord Goff of
Chieveley in their speeches that I had not intended to provide yet
another speech. However, in case it may be thought that your
Lordships’ decision involves such complex reasoning as not to be
readily comprehensible to the senior citizens of Eastleigh, two of
whom have generated this litigation, I add this short contribution.
It is clear from the evidence given in the county court by
the Assistant Manager of the Fleming Park Leisure Centre, the
only witness called on behalf of the respondent council, that Mr.
and Mrs. James, on seeking free admission to the swimming pool,
would have been asked to provide proof of their ages. Having
done so Mrs. James would have been let in free but her husband
would have been required to pay the full price of 75p, although
they were each aged 61. If Mr. James, as he may well have
done, had asked why he was thus being treated differently, i.e.
being discriminated against, he would have been told that it was
the council’s policy to allow free swimming to women over the
age of 60 but in the case of men, that facility was only available
after they had reached the age of 65.
The essential question raised by this appeal is whether this
less favourable treatment received by Mr James was, to quote the
important words of section l(l)(a) of the Sex Discrimination Act
1975, “on the ground of his sex” and therefore unlawful being
contrary to that sub-section and section 29 of the Act.
The answer, in my respectful submission is clearly in the
affirmative. It was common ground in the courts below, and
indeed it was so accepted by Mr Beloff Q.C. before your
Lordships, that the council’s policy was discriminatory. The
council was applying a gender determinative formula for
entitlement to free swimming. You had to be a person “who had
reached pensionable age” (60 for women and 65 for men). Such a
formula was inherently discriminatory. In the county court no
evidence was given as to why the council had decided on this
policy. This omission was in my view fully justified because such
evidence would have been irrelevant. The policy itself was crystal
clear – if you were a male you had, vis-à-vis a female, a five-
year handicap. You had to achieve the age of 65 before you were
allowed to swim free of payment, but if you were a female you
qualified for free swimming five years earlier. The reason why
this policy was adopted can in no way affect or alter the fact
that the council had decided to implement and had implemented a
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policy by virtue of which men were to be treated less favourably
than women, and were to be so treated on the ground of, i.e.
because of, their sex.
There might have been many reasons which had persuaded
the council to adopt this policy. The Court of Appeal have
inferred that “the council’s reason for giving free swimming to
those of pensionable age was to give benefits to those whose
resources would be likely to have been reduced by retirement” (per
Sir Nicolas Browne-Wilkinson V.-C., [1990] Q.B. 61, 73b) I am
quite prepared to make a similar assumption, but the council’s
motive for this discrimination is nothing to the point (see the
decision of this House in Reg. v. Birmingham City Council, Ex
parte Equal Opportunities Commission [1989] A.C. 1153.)
My Lords, I am not troubled by the suggested consequences
of your Lordships’ decision. In the light of the changed and
changing work practices between the sexes there is much to be
said for linking benefits to actual age rather than to state
pensionable age.
I, too, would allow this Appeal.
LORD GOFF OF CHIEVELEY
My Lords,
For the reasons given by my noble and learned friend, Lord
Bridge of Harwich, I too would allow the appeal. However, since
a passage in the speech which I delivered in Reg. v. Birmingham
City Council, Ex parte Equal Opportunities Commission [1989] A.C.
1155, 1192-1194, has been referred to, I think it right to add a
few words of my own.
In the Court of Appeal in the present case, Sir Nicolas
Browne-Wilkinson V.-C. approached the matter as follows.
Referring to section l(l)(a) of the Sex Discrimination Act 1975,
which is usually said to be concerned with cases of “direct”
discrimination, he said [1990] Q.B. 61, 74:
“In the case of direct discrimination ‘a person discriminates
against a [man] … if on the ground of [his] sex he treats
[him] less favourably . . . ‘ Those words indicate that one
is looking, not to the causative link between the defendant’s
behaviour and the detriment to the plaintiff, but to the
reason why the defendant treated the plaintiff less
favourably. The relevant question is ‘did the defendant act
on the ground of sex?’ not ‘did the less favourable
treatment result from the defendant’s actions?’ Thus, if the
overt basis for affording less favourable treatment was sex
(e.g. an employer saying ‘no women employees’) that is
direct discrimination. If the overt reason does not in terms
relate to sex (e.g. in selection for redundancy, part-time
employees are the first to go) that is not on the face of it
direct discrimination since sex does not come into the overt
reason given for the action. If, but only if, it is shown
– 11 –
that the overt reason is not the true reason but there is a
covert reason why the employer adopted those criteria (e.g.
to get rid of his female employees) will it be direct
discrimination. In such a case the true reason for the
policy is the desire to treat women less favourably than
men: the employer is therefore acting on that ground.”
On this approach, a defendant will only have committed an action
of direct discrimination if either his overt or his covert reason for
his action is the sex of the complainant. So the question whether
or not there has been direct discrimination can only be answered
by asking why the defendant acted as he did. The Vice-Chancellor
however went on to state that the defendant’s intention or motive
may be relevant for the purpose of ascertaining the defendant’s
reason for his behaviour. I will return to the use of these three
words – intention, motive and reason – at a later stage.
In reaching this conclusion, the Vice-Chancellor was
influenced primarily by the wording of the subsection. He
considered that the words “on the ground of sex” referred, in this
context, not to the causative link between the defendant’s
behaviour and detriment to the complainant, but to the reason why
the defendant treated the complainant less favourably. But he was
also influenced by his understanding that, to read those words in
the subsection as referring to a causative link, would so widen the
ambit of section l(l)(a) as effectively to emasculate section
l(l)(b). He said, at p. 75:
“There is a further objection to Mr. Lester’s construction of
the section. If there is direct discrimination in every case
where there is a substantial causative link between the
defendant’s treatment and the detriment suffered by the
plaintiff as a result of his sex I can see no room for the
operation of subsection (l)(b). In every case in which a
sexually neutral condition in fact operates differentially and
detrimentally to one sex as opposed to the other, the
imposition of such condition would be a substantial cause of
detriment to the plaintiff by reason of his or her sex, i.e. it
would fall within Mr. Lester’s causation test and therefore
constitute direct discrimination under subsection (l)(a). This
plainly was not the intention of Parliament which was
drawing a clear distinction between, on the one hand, those
cases where the defendant expressly or covertly acts by
reference to the sex of the plaintiff and, on the other,
those cases where the defendant acted on grounds not
expressly or covertly related to sex but his actions have
caused a disparate impact as between the sexes.”
I wish to state at once that I find this latter part of the Vice-
Chancellor’s reasoning unpersuasive. We are concerned in the
present case with the application of a requirement or condition –
pensionable age – which is itself gender-based, since a person’s
pensionable age differs, depending upon his or her sex. Now I
have difficulty in seeing how section l(l)(b) can sensibly apply in
the case of such a requirement or condition. This is because two
of the conditions for the application of section 1(1)(b) are that the
requirement or condition in question is “such that the proportion of
women who can comply with it is considerably smaller than the
proportion of men who can comply with it,” and that it is to her
– 12 –
detriment because she cannot comply with it. These conditions
appear to be irrelevant in the case of a requirement or condition
which is itself gender-based. They presuppose rather a
requirement or condition which is of itself gender-neutral (such as
the physical height of persons in the relevant group, or the nature
of their employment), in which case it would be relevant to
enquire about the proportion of men and women affected by it. It
follows, in my opinion, that where the requirement or condition in
question is gender-based, the question is whether or not there has
been direct discrimination under section l(l)(a). I wish however to
point out that the fact that such cases fall for consideration under
section l(l)(a), rather than section l(l)(b), does not have the effect
of emasculating the latter subsection, under which it may be
appropriate to consider cases concerned with gender-neutral
requirements or conditions, to which the conditions specified in the
subsection can sensibly be applied.
I turn to that part of the Vice-Chancellor’s reasoning which
is based upon the wording of section 1(1)(a). The problem in the
present case can be reduced to the simple question – did the
defendant council, on the ground of sex, treat the plaintiff less
favourably than it treated or would treat a woman? As a matter
of impression, it seems to me that, without doing any violence to
the words used in the subsection, it can properly be said that, by
applying to the plaintiff a gender-based criterion, unfavourable to
men, which it has adopted as the basis for a concession of free
entry to its swimming pool, it did on the ground of sex treat him
less favourably than it treated women of the same age, and in
particular Mrs. James. In other words, I do not read the words
“on the ground of sex” as necessarily referring only to the reason
why the defendant acted as he did, but as embracing cases in
which a gender-based criterion is the basis upon which the
complainant has been selected for the relevant treatment. Of
course, there may be cases where the defendant’s reason for his
action may bring the case within the subsection, as when the
defendant is motivated by an animus against persons of the
complainant’s sex, or otherwise selects the complainant for the
relevant treatment because of his or her sex. But it does not
follow that the words “on the ground of sex” refer only to cases
where the defendant’s reason for his action is the sex of the
complainant; and, in my opinion, the application by the defendant
to the complainant of a gender-based criterion which favours the
opposite sex is just as much a case of unfavourable treatment on
the ground of sex. Such a conclusion seems to me to be
consistent with the policy of the Act, which is the active
promotion of equal treatment of men and women. Indeed, the
present case is no different from one in which the defendant
adopts a criterion which favours widows as against widowers, on
the basis that the former are likely to be less well off; or indeed,
as my noble and learned friend, Lord Bridge of Harwich has
pointed out, a criterion which favours women between the ages of
60 and 65, as against men between the same ages, on the same
basis. It is plain to me that, in those cases, a man in either
category who was so treated could properly say that he was
treated less favourably on the ground of sex, and that the fact
that the defendant had so treated him for a benign motive (to
help women in the same category, because they are likely to be
less well off) was irrelevant.
– 13 –
I fully appreciate that this conclusion means that some
people, seeking to do practical good for the best of motives, may
be inhibited in the sense that they will be precluded from using
gender-based criteria to achieve their purpose. This is the position
in which the council finds itself in the present case. It is, I
understand, anxious to assist, by means of a free concession,
elderly persons who are retired and so are likely to be less well
off than those who are still at work. For this purpose, it has for
practical reasons adopted the criterion of pensionable age. Of
course, it by no means follows that, because a person is of
pensionable age, he will no longer be working, especially nowadays
when he can draw his full pension when he is still in employment;
but no doubt pensionable age is easily established by the
production of a document, and, as a rough and ready test of
retirement, it is reasonably acceptable. But the simple fact is
that, under section 1(1)(a) of the Act of 1975, which is concerned
actively to promote equality of treatment of the two sexes, the
adoption for this purpose of a gender-based criterion is unlawful;
and the task of the council is to find some other reasonably
practical criterion, which does not contravene the Act of 1975, by
which it can achieve its laudable purpose.
Finally, I wish briefly to refer to the use, in the present
context, of such words as intention, motive, reason and purpose.
In the course of argument and in the judgment of the Vice-
Chancellor, attention was focussed upon the use of those words.
Indeed it has been suggested that, for the purpose of identifying
the meaning of those words in the present context, recourse
might usefully be had to the law of murder, and in particular to
the speech of my noble and learned friend, Lord Bridge of
Harwich, in Reg. v. Moloney [1985] AC 905, 914. I must confess,
however, to being very dubious about the validity of this
comparison. In the law of murder, which at present requires
either an intention to kill or an intention to cause grievous bodily
harm, the intention is related to a specific consequence flowing
from the act of the accused; so that, in the great majority of
cases, it is not difficult to focus upon the relevant intention in
the sense of the immediate purpose of the accused, by asking the
questions: did he mean to kill the victim, or did he mean to cause
him really serious bodily harm? In this way, intention can be
distinguished from motive because, although motive is also
concerned with purpose (e.g. the accused killed his victim in order
to get his money), it is here concerned with an ulterior purpose,
i.e. the reason why he decided to kill. The law of murder is, I
suppose, useful in the sense that it assists to show how, in a
certain context, intention and motive can be distinguished, although
the concept of purpose may be regarded as relevant to both. But
the fact that the concept of purpose may be relevant to both
demonstrates how easily they can be confused, and how, without a
precise definition of the specific question under consideration and
of the context in which it is being asked, it may be possible to
use the terms interchangeably, at least in ordinary speech, without
abuse of language. For it may be said of a man who kills another
for his money either that he intended to get the money or that
getting the money was his motive for killing. It follows that, in a
legal context, if words such as intention or motive are to be used
as a basis for decision, they require the most careful handling, and
it also follows that their use in one context may not be a safe
guide to their use in another context.
– 14 –
For these reasons, I am reluctant to have to conclude that
those who are concerned with the day to day administration of
legislation such as the Sex Discrimination Act 1975, who are
mainly those who sit on industrial tribunals, should have to grapple
with such elusive concepts as these. However, taking the case of
direct discrimination under section l(l)(a) of the Act, I incline to
the opinion that, if it were necessary to identify the requisite
intention of the defendant, that intention is simply an intention to
perform the relevant act of less favourable treatment. Whether or
not the treatment is less favourable in the relevant sense, i.e. on
the ground of sex, may derive either from the application of a
gender-based criterion to the complainant, or from selection by the
defendant of the complainant because of his or her sex; but, in
either event, it is not saved from constituting unlawful
discrimination by the fact that the defendant acted from a benign
motive. However, in the majority of cases, I doubt if it is
necessary to focus upon the intention or motive of the defendant
in this way. This is because, as I see it, cases of direct
discrimination under section l(l)(a) can be considered by asking the
simple question: would the complainant have received the same
treatment from the defendant but for his or her sex? This simple
test possesses the double virtue that, on the one hand, it embraces
both the case where the treatment derives from the application of
a gender-based criterion, and the case where it derives from the
selection of the complainant because of his or her sex; and on the
other hand it avoids, in most cases at least, complicated questions
relating to concepts such as intention, motive, reason or purpose,
and the danger of confusion arising from the misuse of those
elusive terms. I have to stress, however, that the “but for” test
is not appropriate for cases of indirect discrimination under section
l(l)(b), because there may be indirect discrimination against
persons of one sex under that subsection, although a
(proportionately smaller) group of persons of the opposite sex is
adversely affected in the same way.
I trust that the foregoing will explain why I expressed
myself as I did, I fear too tersely, in Reg. v. Birmingham City
Council, Ex parte Equal Opportunities Commission [1989] A.C.
1155, 1193-1194. I wish to express my gratitude to counsel for
the assistance which they have given to your Lordships in the
present case, which has encouraged me to ponder again and more
deeply upon the problem of construction of section 1(1) of the Act
of 1975, and to express more fully the reasons for the solution of
that problem which I myself favour.
LORD LOWRY
My Lords,
The facts of this appeal are simple, but I confess to having
had some difficulty in deciding it. I can discern in your Lordships’
speeches, which I have had the advantage of reading in draft, two
– 15 –
logical and persuasive trains of thought which lead to opposite
conclusions, and the question is how to choose between them.
The case has been presented by the plaintiff as an example
of direct discrimination, an apt and by now customary description
of a breach of section l(l)(a) of the Sex Discrimination Act 1975
which, as applied to men, provides:
“A person discriminates against a [man] in any circumstances
relevant for the purposes of any provision of this Act if –
(a) on the ground of [his] sex he treats [him] less favourably
than he treats or would treat a [woman].”
There are two questions for decision: (1) What, on its true
construction, does this provision mean? (2) When the provision,
properly construed, is applied to the facts, did the council
discriminate against the appellant contrary to section l(l)(a)?
With a view to construction, the crucial words are “on the
ground of his sex”. Mr. Lester for the appellant, submits that this
phrase means “due to his sex” and does not involve any
consideration of the reason which has led the alleged discriminator
to treat the man less favourably than he treats or would treat a
woman. I shall call this the causative construction and will
presently advert to it. Mr. Beloff, for the council, contends for
what I shall call the subjective construction, which involves
considering the reason why the discriminator has treated the man
unfavourably. He submits that this construction accords with the
plain meaning of the words and the grammatical structure of the
sentence in which they occur. I accept Mr. Beloff’s construction
and I proceed to explain why I do so.
On reading section l(l)(a), it can be seen that the
discriminator does something to the victim, that is, he treats him
in a certain fashion, to wit, less favourably than he treats or
would treat a woman. And he treats him in that fashion on a
certain ground, namely, on the ground of his sex. These words, it
is scarcely necessary for me to point out, constitute an adverbial
phrase modifying the transitive verb “treats” in a clause of which
the discriminator is the subject and the victim is the object.
While anxious not to weary your Lordships with a grammatical
excursus, the point I wish to make is that the ground on which the
alleged discriminator treats the victim less favourably is
inescapably linked to the subject and the verb; it is the reason
which has caused him to act. The meaning of the vital words, in
the sentence where they occur, cannot be expressed by saying that
the victim receives treatment which on the ground of (his) sex is
less favourable to him than to a person of the opposite sex. The
structure of that sentence makes the words “on the ground of his
sex” easily capable of meaning “due to his sex” if the context so
requires or permits.
Mr. Beloff gave your Lordships a definition of “ground” from
the Oxford English Dictionary 2nd ed., vol vi, p. 876:
“a circumstance on which an opinion, inference, argument,
statement or claim is founded, or which has given rise to an
action, procedure or mental feeling; a reason, motive.
Often with additional implication: A valid reason, justifying
motive, or what is alleged as such.”
– 16 –
Mr. Lester conceded that in ordinary speech to ask on what
grounds a particular decision is taken invites consideration of the
mental processes of the decision-maker. And your Lordships are
only too familiar with the use in a legal context of the word
“grounds” as synonymous with reasons. It is also interesting to
note one dictionary definition of “discriminate” as “to make a
distinction, especially unjustly, on the grounds of race or colour or
sex.” As Mr. Beloff put it, section 1(1)(a) refers to the activities
of the discriminator: the words “on the ground of his sex” provide
the link between the alleged discriminator and his less favourable
treatment of another. They introduce a subjective element into
the analysis and pose here the question “Was the sex of the
appellant a consideration in the council’s decision?” Putting it
another way, a “ground” is a reason, in ordinary speech, for which
a person takes a certain course. He knows what he is doing and
why he has decided to do it. In the context of section l(l)(a) the
discriminator knows that he is treating the victim less favourably
and he also knows the ground on which he is doing so. In no case
are the discriminator’s thought processes immaterial.
In the Court of Appeal Sir Nicolas Brown-Wilkinson V.-C.
said [1990] Q.B. 61, 71:
“As the facts of this case demonstrate, there is no doubt
that the council’s policy has a discriminatory impact as
between men and women who are over the age of 60 but
under … 65. [Women] of that age enjoy the concession:
men of the same age do not. But not all conduct having a
discriminatory effect is unlawful: discriminatory behaviour
has to fall within the statutory definition of discrimination
and to have occurred in a context (e.g. in relation to
employment or the provision of facilities) in which the Act
renders such discrimination unlawful.”
Then (I am simply dealing with the construction point) he said, at
p. 74:
“Mr. Lester, for the plaintiff, forcefully submitted that
there is direct discrimination in this case. He submitted
that discrimination is ‘on the ground of sex within section
l(l)(a) if the sex of the plaintiff is a substantial cause of
the less favourable treatment. In this context, he says, the
correct question is ‘What would the position have been but
for the sex of the plaintiff?’ If the position would be
different if the plaintiffs sex were different, that is direct
discrimination.
“I do not accept that construction of section 1. In
my judgment section 1(1)(a) is looking to the case where,
subjectively, the defendant has treated the plaintiff less
favourably because of his or her sex. What is relevant is
the defendant’s reason for doing an act, not the causative
effect of the act done by the defendant. As Mr. Towler
for the council pointed out, section 1(1) is referring
throughout to the activities of the alleged descriminator. In
the case of direct discrimination ‘a person discriminates
against a [man] . . . if on the ground of [his] sex he treats
[him] less favourably . . . ‘ Those words indicate that one
is looking, not to the causative link between the defendant’s
– 17 –
behaviour and the detriment to the plaintiff, but to the
reason why the defendant treated the plaintiff less
favourably. The relevant question is ‘did the defendant act
on the ground of sex?’ not ‘did the less favourable
treatment result from the defendant’s actions?'”
I agree with and adopt those observations of the Vice-Chancellor,
which I consider to be entirely consistent with the decision
reached by your Lordships’ House in Birmingham City Council v.
Equal Opportunities Commission [1989] AC 1155, on which Mr.
Lester has so strongly relied and to which I must soon give my
attention.
While still on the construction point, I might mention,
Armagh District Council v. Fair Employment Agency [1983] N.I.
346, which was a decision of the Court of Appeal in Northern
Ireland on the Fair Employment (Northern Ireland) Act 1976.
Section 16(2) of the Act provided:
“For the purposes of this Act a person discriminates against
another person on the ground of religious belief or political
opinion if, on either of those grounds, he treats that other
person less favourably in any circumstances than he treats
or would treat any other person in those circumstances. . .
.”
The facts were concerned with the appointment of a wages clerk
by a district council and do not assist in the resolution of this
appeal, but perhaps I may be permitted to refer to a passage in
my judgment where I said, at pp. 354F-355:
“It must not be forgotten that when the Act uses the word
‘discrimination or ‘discriminate’ it is referring to an
employer who makes a choice between one candidate and
another on the ground of religious belief or political opinion;
it is not speaking of an incidental disadvantage which is due
to a difference between the religion of the employer and of
the candidate but of a deliberate, intentional action on the
part of the appointing body or individual.
“Here I must dispose of a misleading argument which
was raised before the learned county court judge but not
seriously pursued in this court. An action may be deliberate
without being malicious. Most acts of discrimination are
both, but the only essential quality is deliberation. If a
Protestant employer does not engage a Roman Catholic
applicant because he genuinely believes that the applicant
will not be able to get on with Protestant fellow workmen,
he is discriminating against the applicant on the ground of
his religious belief, although that employer’s motives may be
above reproach. If women are allowed to stop work five
minutes early in order to avoid being endangered when the
day’s work ends, it has been decided that the men in the
workforce are discriminated against on the ground that they
are men. The employer’s decision to keep the men at work
longer, though reached in good faith, was deliberately based
on the fact that they were men.
“Accordingly, it can be stated that, although malice
(while often present) is not essential, deliberate intention to
differentiate on the ground of religion, politics, sex, colour
– 18 –
or nationality (whatever is aimed at by the legislation) is an
indispensable element in the concept of discrimination. The
distinction is sometimes expressed as one between motive
and intention. In Peake v. Automotive Products Ltd. [1977]
Q.B. 780, the case about releasing women early from their
work, Phillips J. stated, at p. 787: ‘it seems to us that
[counsel] is confusing the motive or the purpose of the act
complained of with the factual nature of the act itself.
Section 1(1)(a) requires one to look to see what in fact is
done amounting to less favourable treatment and whether it
is done to the man or the woman because he, is, a man or
a woman. If so, it is of no relevance that it is done with
no discriminatory motive.’ This idea runs through all the
cases.”
The Peake decision was reversed on appeal [1978] Q.B. 233, but
has subsequently been recognised as correct: Ministry of Defence
v. Jeremiah [1980] Q.B. 87.
Section 66 of the Act deals with the enforcement of claims
under Part III, which includes the relevant section 29. Subsection
(3) provides:
“As respects an unlawful act of discrimination falling within
section 1(1)(b) (or, where this section is applied by section
65(1)(b), section 3(1)(b)) no award of damages shall be made
if the respondent proves that the requirement or condition
in question was not applied with the intention of treating
the claimant unfavourably on the ground of his sex or
marital status as the case may be.”
Damages may be awarded in respect of all acts of direct
discrimination and therefore, as Mr. Beloff persuasively contends,
the subjective construction of section 1(1)(a) would be consistent
with the principle of making damages available only in cases where
the discrimination has been intentional.
As I have said, and as the Vice-Chancellor stated in the
Court of Appeal, Mr. Lester espoused the causative construction of
the vital words which, as he submitted, has the virtue of
simplicity; it eliminates consideration of the discriminator’s mental
processes and of such protean and slippery concepts as intention,
purpose, motive, desire, animus, prejudice, malice and reason. The
basic difficulty of this approach, I consider, is that one has to
disregard or distort the phrase – “on the ground of his sex” in
order to make it work. Counsel argued that the subjective
construction “artificially confines the meaning of ‘ground'”. I must
disagree: the subjective construction uses “ground” in its natural
meaning, whereas the causative construction suppresses the natural
meaning. The phrase “on the ground of” does not mean “by reason
of”; moreover, “ground” must certainly not be confused with
“intention”.
Mr. Lester rightly submits that the policy of the Act is to
discourage discrimination and promote equality. But the Act
pursues that policy by means of the words which Parliament has
used. Some inequality may be justified (see section l(l)(b)(ii)) and
some is accepted (see sections 6(4) and 51 (now 51A as amended
by section 3 of the Employment Act 1989)). The phrase “on the
– 19 –
ground of his sex” does not, as alleged, constitute an exception to
the policy and therefore does not fall to be narrowly construed.
The words in question constitute an ingredient of unlawful
discrimination contrary to section 1(1)(a).
As I have said, the appellant relies strongly on the
Birmingham case. The relevant extracts from the speech of my
noble and learned friend, Lord Goff of Chieveley have already
been cited by him and by my noble and learned friend, Lord
Bridge of Harwich. Your Lordships will recall that Lord Goff of
Chieveley said, p. 1194:
“There is discrimination under the statute if there is less
favourable treatment on the ground of sex, in other words if
the relevant girl or girls would have received the same
treatment as the boys but for their sex. The intention or
motive of the defendant to discriminate, though it may be
relevant so far as remedies are concerned (see section 66(3)
of the Act of 1975), is not a necessary condition of
liability; it is perfectly possible to envisage cases where the
defendant had no such motive, and yet did in fact
discriminate on the ground of sex. Indeed, as Mr. Lester
pointed out in the course of his argument, if the council’s
submission were correct it would be a good defence for an
employer to show that he discriminated against women not
because he intended to do so but (for example) because of
customer preference, or to save money, or even to avoid
controversy. In the present case, whatever may have been
the intention or motive of the council, nevertheless it is
because of their sex that the girls in question receive less
favourable treatment than the boys, and so are the subject
of discrimination under the Act of 1975. This is well
established in a long line of authority: see, in particular,
Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] 1
W.L.R. 1485, 1494, per Browne-Wilkinson J., and Ex parte
Keating, per Taylor J., at p. 475; see also Ministry of
Defence v. Jeremiah [1980] Q.B. 87, 98, per Lord Denning
M.R. I can see no reason to depart from this established
view.”
My Lords, as my noble and learned friend said, the
Birmingham City Council did discriminate on the ground of sex. I
have no difficulty in applying to the facts the subjective
construction of section l(l)(a) and in appreciating on the basis of
that construction that the council treated the girls less favourably
on the ground of their sex. At the qualifying stage many more
places in the Birmingham grammar schools were available for boys
of the appropriate age than for girls. The pupils concerned took a
test and their performance was assessed in order to see which
pupils had qualified. Because there were fewer places available
for girls, they had to achieve higher marks than the boys and
accordingly the council, when considering the performance of a girl
in the test, was obliged to demand from her a higher mark than if
she had been a boy. In so doing the council treated that girl less
favourably than it treated a boy and did so on the ground of her
sex. Your Lordships followed a well-trodden path in holding that
the mere fact that the council had no prejudice against girls and
did not intend or desire to place them at a disadvantage and acted
as it did from necessity (the defence put up by the council) was
– 20 –
of no avail against the established fact that the council
deliberately discriminated against the girls in the way I have
described.
The appellant in this case, however, has relied , in favour
of the causative construction, on my noble and learned friend’s
statement that there is discrimination if the girls “would have
received the same treatment as the boys but for their sex” and, to
a lesser extent, on his further statement that “it is because of
their sex that the girls in question receive less favourable
treatment than the boys”.
I feel that I would have no difficulty in dealing with this
argument, but for the fact that it has commended itself to the
majority of your Lordships, including the author of the passage in
question. It is therefore with even more than the usual measure
of respect that I make the observations which follow. In their
context both of the statements which I have extracted are
perfectly correct statements of fact, but that does not mean that
they are a guide to the proper construction of section l(l)(a),
which I have considered above. The defence was not that the less
favourable treatment was a purely undesigned and adventitious
consequence of the council’s policy. It would have had to be
admitted that the council, however regretfully, knew it was
treating the girls less favourably than the boys and that owing to
the shortage of school places it had deliberately decided so to
treat them because they were girls. The defence, based on
absence of intention and motive, was rightly rejected and no other
defence was made or could have been made. Whichever
construction of section l(l)(a) had been applied, the council would
have lost, and no rival constructions of that provision were
discussed. It is, I consider, worth noting that the examples and
the cases which my noble and learned friend mentions are
consistent with the subjective construction. If a men’s hairdresser
dismisses the only woman on his staff because the customers
prefer to have their hair cut by a man, he may regret losing her
but he treats her less favourably because she is a woman, that is,
on the ground of her sex, having made a deliberate decision to do
so. If the foreman dismisses an efficient and co-operative black
road sweeper in order to avoid industrial action by the remaining
(white) members of the squad, he treats him less favourably on
racial grounds. If a decision is taken, for reasons which may seem
in other respects valid and sensible, not to employ a girl in a
group otherwise consisting entirely of men, the employer has
treated that girl less favourably than he would treat a man and he
has done so consciously on the ground (which he considers to be a
proper ground) that she is a woman. In none of these cases is a
defence provided by an excusable or even by a worthy motive.
It can thus be seen that the causative construction not only
gets rid of unessential and often irrelevant mental ingredients,
such as malice, prejudice, desire and motive, but also dispenses
with an essential ingredient, namely, the ground on which the
discriminator acts. The appellant’s construction relieves the
complainant of the need to prove anything except that A has done
an act which results in less favourable treatment for B by reason
of B’s sex, which reduces to insignificance the words “on the
ground of”. Thus the causative test is too wide and is
grammatically unsound, because it necessarily disregards the fact
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that the less favourable treatment is meted out to the victim on
the ground of the victim’s sex.
I now turn to an aspect of the case which has caused me
greater difficulty, and that is the question whether, by adopting a
gender based discriminatory criterion as a test of free admission
to their swimming pool, the council have inevitably put themselves
in the position of treating men between 60 and 64 “less favourably
on the ground of their sex”. Without doubt the council have
treated men of that age-group less favourably than they have
treated women of the same age-group. But have they done so on
the ground of the men’s sex? There is a strong body of opinion in
favour of an affirmative answer. Three of your Lordships have
adopted it and a number of academic writers on the subject, who
know what they are talking about, have taken the same view.
This view is variously expressed. One way of putting it is
that the expression “persons who have reached state pension age”
is just a shorthand expression which denotes the age of 60 in a
woman and the age of 65 in a man. I hope it is not a mere
quibble to point out that shorthand is normally a substitute for the
original expression and not the original expression itself. Another
approach, mooted during argument, is that the council might as
well have put up a notice, “Admission 75p. Children under 3,
women over 60 and men over 65 admitted free.” The wording of
the second part of such a notice would be openly discriminatory,
but another way of describing that wording would be to call it a
spelling out of the council’s policy of granting free admission to
all persons who had reached state pension age. The same might
be said of age-related provisions about concessionary rail and bus
fares and free medical prescriptions. Yet another, and also a
logical, theory is that, if the council are bound to foresee that the
test which they have adopted inevitably leads to the result that
men of the 60-64 age-group will receive from the council less
favourable treatment than women of the same age-group, then the
council, without the need of further proof, are incontrovertibly
shown to have deliberately and knowingly treated those men
unfavourably on the ground of their sex.
I can see the force of this point. Indeed, when the hearing
concluded, it seemed to me likely to be decisive. But I have
come away from that view because, in my opinion, the
foreseeability, even the inevitability, of the result as viewed or
viewable by an alleged discriminator does not provide the
touchstone of liability: that is supplied by the ground on which he
has acted and the foreseeability test, adopted by analogy with the
criminal law as an indication of the intention of the accused, is
not the appropriate test for deciding on what ground, that is, for
what reason the person acted and, accordingly, whether there has
been direct discrimination contrary to section 1(1)(a).
Here I adopt the convincing argument of my noble and
learned friend, Lord Griffiths. The council were providing free
swimming for a certain group of people because they were of
pensionable age and not because they were men and women of
specific but different ages. Therefore the council did not use the
expression “persons who have reached the state pension age” as a
convenient way of describing women over 60 and men over 65.
The council refused to provide free swimming for the appellant,
– 22 –
not because he was a man under 65, but because he had not
reached the state pensionable age and therefore could fairly be
expected to pay the normal charge of 75p. The distinction drawn
by the council depended on the presence or absence of pensionable
status and not on sex. Apposite is Mr. Beloff’s suggestion that
the council’s policy would not change, even if the state pension
age were altered for either sex or for both sexes.
There is no suggestion that the council here were guilty of
bad faith in the shape of covert discrimination. They were, it
seems, adopting a time-honoured and rough and ready, if most
imperfect, means test which, right up to the present, has
continued to commend itself to the Government and to Parliament,
as the many statutory examples produced by learned counsel to
your Lordships have shown. In saying this, I do not indulge in a
vain attempt to defend the council by reference to its worthy
motives. I am simply concerned to point out that when primary
legislation permits, and subordinate legislation employs, the age
differential of 60 for women and 65 for men, that legislation
should not be taken as indicating an intention by Parliament to
place men at a disadvantage on the ground that they are men.
The conclusion I have come to provides an explanation for
the reluctance of the appellant’s very able and experienced leading
counsel to accept the subjective interpretation of the words “on
the ground of his sex” and for his unswerving adherence to the
causative “but for” test. If the subjective interpretation is
correct, the fact that a discriminatory result is foreseeable does
not offer the appellant a satisfactory solution of his problem,
because the foreseeable result does not show on what ground the
alleged discriminator acted. That involves a question of fact the
answer to which will depend on what is proved or admitted and on
what may be inferred from the evidence.
My Lords, there is just one other point which I would
mention. The appellant’s argument seemed to infer that the
council’s action, since it was not indirect discrimination under
section 1(1)(b), must be caught by section 1(1)(a) because it
involves less favourable treatment of men and ought not to escape
entirely from the purview of the Act. This suggested conclusion,
however, cannot prevail over the meaning of section l(l)(a) if that
meaning is clear. Furthermore, I would not, in the absence of
argument on both sides, be prepared to accept that the Vice-
Chancellor was wrong to contemplate the possibility of a claim of
indirect discrimination on the present facts. The key words in
section 1(1)(b) are “[if] he applies to her a requirement or
condition which he applies . . . equally to a man”, and not “…
which applies equally to a man”. A prospective employer may
apply equally to men and women alike a height or strength
requirement which is sexually neutral, but the overall result of
applying the requirement will be predictable. It seems to me, so
far as the point has any relevance, that it can be argued that the
council have applied equally to men and women the requirement of
their having reached state pension age, although the requirement
itself was discriminatory. By parity of reasoning, I would also
need to be convinced that the Vice-Chancellor acted inconsistently
when he rejected the test of the judge in the county court and
yet held section l(l)(b) to be relevant if relied upon. Your
Lordships will already have noted that the appellant, whose cause
– 23 –
was promoted throughout by the Equal Opportunities Commission,
expressly relied on section l(l)(a) of the Act to the exclusion of
section 1(1)(b).
For the reasons contained in the speech of my noble and
learned friend, Lord Griffiths and also for those which I have
given, I would dismiss the appeal.
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Source: https://www.bailii.org/
