James v Eastleigh [1990] IRLR 288

1) Reference Details

Jurisdiction: House of Lords, United Kingdom of Great Britain and Northern Ireland Date of Decision: 14 June 1990 Case Status: Concluded (House of Lords) Link to full case: http://www.hrcr.org/safrica/equality/James_EastleighBoroughCouncil.htm

2) Facts

The applicant, Mr James, was a 61-year old pensioner. On a day in November 1985 he went with his wife, also 61 and also a pensioner, to the Fleming Park Leisure Centre for the purpose of using the swimming pool there. Eastleigh Council charged 75p admission to its swimming pools but allowed free swimming “for children under three years of ages and persons who have reached the state pension age.” The relevant age at the time was 60 for a woman and 65 for a man. As a result Mr James was the victim of discrimination by reason of his sex, having to pay for swimming whereas his wife did not. The discrimination was de jure, that is to say it operated as a consequence of the law of England and Wales which set the relevant retirement ages.

With the backing of the Equal Opportunities Commission, Mr James claimed that he had been discriminated against on the grounds of sex contrary to s. 29(1)(b) of the Sex Discrimination Act, which prohibits discrimination on the grounds of sex in relation to the provision of facilities to the public. Southampton County Court dismissed the claim on the basis that the relevant “section of the public” to which Mr James belonged was persons not of pensionable age, and as such men and women within this section were treated equally.

The Court of Appeal dismissed this argument, holding that “it is not permissible for a defendant...to seek to define the section of the public to which it offers services in terms which are themselves discriminatory in terms of gender.”

The issue arose before the Court of Appeal as to whether the Council’s policy constituted direct discrimination against Mr James “on the ground of his sex” within the meaning of s. 1(1)(a) of the Sex Discrimination Act 1975. The Court held that there was no direct discrimination, as the reason for the policy was to assist pensioners as being less well-off than those still working.

The House of Lords had to readdress the question whether there had been any direct discrimination against Mr James.

3) Law

National Law

• Sex Discrimination Act 1975 • Social Security Act 1975

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4) Legal Arguments

The Appellant

The appellant contended that the phrase “on the grounds of [his] sex” was to be given a causative construction, so that if the effect of the Council’s policy was that, but for his sex , the appellant would have been treated in the same way as his wife, so there was direct discrimination.

The Respondent

The respondent submitted that the above phrase should be given a subjective construction, so that there would only be direct discrimination if the “reason” for the Council’s differing treatment of the appellant was that he was a man. On the facts the true reason was that the appellant was not yet of pensionable age, and so there was no direct discrimination.

5) Decision

The Majority Decision

The majority held that there was direct discrimination contrary to s. 1(1)(a) of the Act. The simple question to be considered under s. 1(1)(a) is: "would the complainant have received the same treatment from the defendant but for his or her sex?" This test 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. Adopting that test in the present case, the question became "would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?" The question must be answered in the affirmative. The Court of Appeal’s finding was directly contrary to the House of Lords’ decision in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173, which confirmed that the correct test under s. 1(1)(a) is objective, not subjective.

The fact that the Council had benign motives in acting the way it did, intending to benefit old-age pensioners, did nothing to change the fact of direct discrimination.

The majority opined that s. 27(1) of the Social Security Act 1975, which set the retirement age for men and women at 65 and 60 respectively, was clearly directly discriminatory. It followed that any policy based on that section must also constitute direct discrimination. The Council had only referred to pensionable age as a “convenient shorthand” for 65 in a man and 60 in a woman.

Dissenting Opinions

Lord Lowry held that the correct approach was the subjective approach argued by counsel for the respondent. “On the grounds of his sex” meant by reason of his sex, so that there must be some evidence of sex being the reason for the discriminatory policy. To restrict the phrase to the causative construction outlined above led to the natural meaning of the phrase being suppressed.

Lords Lowry and Griffith held that pensionable age was not merely “convenient shorthand” for some other criterion, but was itself the ground for refusing Mr James free admission to the swimming pool.

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