James v Eastleigh Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date26 Apr 1989
Judgment citation (vLex)[1989] EWCA Civ J0426-2
Docket Number89/0402

[1989] EWCA Civ J0426-2





Royal Courts of Justice


The Vice-Chancellor

(Sir Nicolas Browne-Wilkinson)

Lord Justice Parker

Lord Justice Nourse


Case No. 86 10699

Peter James
Eastleigh Borough Council

MR A. LESTER, Q.C. and MR M. KENT (instructed by Messrs Pennington Ward Bowie, agents for Messrs Ewing Hickman & Clark) appeared on behalf of the appellant (plaintiff).

MR P. TOWLER (instructed by Mr R.W. Read, Solicitor to Eastleigh Borough Council) appeared on behalf of the respondents (defendants).


In November 1985 the plaintiff, Mr. Peter James, and his wife went to the Fleming Park Leisure Centre swimming pool in the Borough of Eastleigh. Both were aged 61 years. Mr. James had retired from his employment some years before. Mrs. James was admitted free of charge; Mr. James had to pay an admission fee of 75p. This was because the Council had adopted a policy under which free swimming was allowed

"for children under 3 years of age and persons who have reached the state pension age".


Pensionable age is the age at which a person can first be paid a State pension. By virtue of s. 27(1) and Schedule 22 of the Social Security Act 1975, pensionable age is 65 for men and 60 for women. It was for this reason that Mr. James was required to pay whereas his wife of the same age was not required to pay.


The swimming facilities were provided by the Council under s. 19 of the Local Government (Miscellaneous Provisions) Act 1976, ss.(2) of which permits differential rates to be charged for facilities provided by the Council.


Mr. James, supported by the Equal Opportunities Commission started these proceedings against the Council. He claimed a declaration that under the Sex Discrimination Act 1975 it was unlawful to discriminate against men who have attained the age of 60 by refusing to provide them with a concession of free swimming at the Fleming Park Leisure Centre and damages limited to £300. The claim was dismissed by His Honour Judge Tucker Q.C. Mr. James appeals to this court.


It may be thought that the sum of 75p does not warrant such lengthy and expensive litigation. But the Equal Opportunities Commission take the view that the widespread practice of providing facilities either free or at concessionary rates to those who have reached State pension age is discriminatory and unlawful. They have therefore pursued this as a test case.


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 50 hut under the age of 63. 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.


The Act is drafted on the basis that sex discrimination will operate as against women not against men. S. 2 of the Act provides, so far as relevant for present purposes, that its provisions are to be read as applying equally to the treatment of men. I will therefore quote the provisions of the Act, after making the necessary modifications, as they apply to discrimination against men.


S. 1(1) of the Act defines discrimination to which the Act applies. Discrimination is of two kinds, normally referred to as direct discrimination (dealt with by sub-section (1)(a)) and indirect discrimination (dealt with by sub-section (1)(b). S. 1(1) reads as follows:

"A person discriminates against a man in any circumstances relevant for the purposes of any provision of this Act if—

  • (a) on the grounds of his sex he treats him less favourably than he treats or would treat a woman, or

  • (b) he applies to him a requirement or condition which he applies or would apply equally to a woman but—

    • (i) which is such that the proportion of men who could comply with it is considerably smaller than the proportion of women 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 his detriment because he cannot comply with it."


Part II of the Act deals with discrimination in the employment and related fields; Part III (which includes s. 29) deals with discrimination in other fields. S. 29(1)(h) provides:

"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 man who seeks to obtain or use those goods, facilities or services—

  • (a)……..

  • (b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in her case in relation to female members of the public or (where he belongs to a section of the public) to female members of that section."


Applying s. 29 to the facts of this case, Mr James says that the Council, which is concerned with the provision of a facility (i.e. swimming) to the public has discriminated against him in refusing to provide him (being a person over 60 but under the age of 65) with that facility on the like terms as are normal in relation to female members of the public of that age (i.e. free).


In the court below it was common ground that the Council's policy was discriminatory within the meaning of s. 1 of the Act. There was no consideration of the question whether such discrimination was direct or indirect, a fundamental point to which I will have to return. Both below and in this court the Council accept that there was no statutory defence to this claim if it properly fell within s. 29: in particular the Council accept that the various exemptions from the Act affecting provisions in relation to death or retirement do not apply to this case since there is no such exception affecting s. 29 of the Act.


The Council's principal defence below was that the case does not fall within s. 29. The Council were providing the facility to "a section of the public" to which Mr. James belongs, i.e. those not of pensionable age: women in the same section of the public (i.e. women not of pensionable age) are provided with the facility on exactly the same basis (i.e. at a charge of 75p.): therefore the charging policy is not unlawful The judge accepted this argument.


I cannot agree for two reasons. First the point was not open on the pleadings. Paragraph 1 of the particulars of claim alleges that the Council were providing swimming facilities to the public. This was admitted by the defence, obviously correctly Once it is accepted that facilities were being provided for the public (as opposed to a section of the public) any discriminatory failure to provide those facilities on the same basis to comparable males and females on the same terms comes within the exact words of the section. The discriminatory provision of facilities is unlawful if those facilities are provided either for the public or for a section of the public. Mr. James as a member of the public was discriminated against: it is irrelevant whether, when treated as a member of a section of the public, there was or was not discrimination.


Moreover, in my judgment 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 grounds that the facility of free travel is only being provided for a section of the public comprising men. whatever...

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