James v Eastleigh Borough Council

JurisdictionUK Non-devolved
JudgeLord Bridge of Harwich,Lord Griffiths,Lord Ackner,Lord Goff of Chieveley,Lord Lowry
Judgment Date14 June 1990
Judgment citation (vLex)[1990] UKHL J0614-3
Date14 June 1990
CourtHouse of Lords
Eastleigh Borough Council

[1990] UKHL J0614-3

Lord Bridge of Harwich

Lord Griffiths

Lord Ackner

Lord Goff of Chieveley

Lord Lowry

House of Lords

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 1(1)(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 L.JJ.) [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 1(1)( 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 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 1(1)( 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 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 1(1)( 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 1(1)( 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… .

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