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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James v Eastleigh Borough Council [1990] UKHL 6 (14 June 1990) URL: http://www.bailii.org/uk/cases/UKHL/1990/6.html Cite as: [1990] UKHL 6, [1990] 2 AC 751, [1990] 2 All ER 607, [1990] ICR 554, [1990] 3 WLR 55, [1990] IRLR 288 |
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Parliamentary
Archives,
HL/PO/JU/18/250
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
- 2 -
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
- 3 -
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
-4-
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
- 6 -
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.
- 8 -
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.
- 9 -
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
- 10 -
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
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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
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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
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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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