R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40

In brief

The Supreme Court held that the way approved premises (probation hostels) were provided in England and Wales, with 94 for men but only six for women, none in London or Wales, was direct sex discrimination against women, because the risk of being placed far from home was much greater for women [1], [26]-[33]. It rejected the argument that direct discrimination needs every member of the group to suffer the treatment [28]-[31], and held that provision of single-sex premises needed justification under paragraph 26 of Schedule 3 to the Equality Act 2010, the exception for separate services for each sex [34]-[38]. The Secretary of State had not shown that the provision was a proportionate means of achieving a legitimate aim: saving cost is a legitimate aim but 'budgetary considerations cannot justify discrimination' [40], and the earlier finding of a breach of the public sector equality duty left the Ministry unable to show proportionality [42]. The Court did not decide that justification was impossible, only that none had yet been shown [42], [45]. Conduct cannot be both direct and indirect discrimination, so the direct finding ruled out the indirect claim [43]. A declaration was granted [45].

Key provisions

• para-26 — Direct sex discrimination where the criterion is sex; not every woman need suffer the detriment : Per [29], the 'exact correspondence' test applies only where the actual criterion is something other than a protected characteristic; here the criterion is sex. Per [30]-[31], it is not a requirement of direct discrimination that all who share the protected characteristic suffer the treatment: all the women released on licence to an approved premises suffered a much greater risk than the men of being sent far from home and family, and the fact that some did not suffer it does not mean those who did were not discriminated against. Per [32], the material circumstances (offenders released on licence on condition of living in approved premises) were the same for men and women, and comparison of like with like usually turns on circumstances extrinsic to the individuals.
• para-34 — Paragraph 26 of Schedule 3: separate services for each sex need justification : Per [34], paragraph 26 proceeds on the assumption that, without it, single-sex services would be unlawful discrimination, so the question is whether in this case the discriminatory effect of providing only single-sex establishments can be justified; the Court recalled that 'separate but equal' claims in other settings call for suspicion. Per [35]-[37], paragraph 26(1) covers separate services for each sex and 26(2) separate services provided differently, 'limited' meaning limited by sex, and 26(3) applies the paragraph to a person exercising a public function in relation to the service. Per [38], the conditions that a joint service would be less effective and that it was not reasonably practicable to provide otherwise were accepted by the appellant's counsel.
• para-40 — Cost alone cannot justify discrimination; the burden is on the respondent : Per [40], saving cost is a legitimate objective of public policy but, as the Court of Justice said in O'Brien, 'budgetary considerations cannot justify discrimination': a benefit limited to save costs must be limited in a non-discriminatory way. Per [40], there was no evidence or finding that the aim was to ensure men and women were accommodated in similarly appointed premises. Per [42], it is for the respondent to show the discrimination is justified; having not addressed the impact on women, assessed the disadvantage or considered mitigation, the Ministry could not show the distribution of premises was a proportionate means of achieving a legitimate aim.
• para-41 — Alternatives the Ministry had not considered : Per [41], the appellant's complaint was that the Ministry had never properly addressed its mind to providing sufficient suitable places for women as close to home as possible, and the Court recorded options that could have been considered: replacing larger women's premises with more smaller ones spread more widely, closing and replacing existing premises nearer where many serious women offenders have their homes, redesignating a men's premises in London for women, or alternative forms of accommodation. Per [41], the appellant accepted in principle that different provision might be justified.
• para-43 — Direct and indirect discrimination are mutually exclusive : Per [43], the complaint was of unequal provision, not an equally applied provision, criterion or practice, so shoe-horning it into indirect discrimination does not work; conduct cannot at one and the same time be both direct and indirect discrimination, and the finding of direct discrimination rules out a finding of indirect discrimination.
• para-45 — The declaration : Per [45], the Court was prepared to grant a declaration that the provision of approved premises by the Secretary of State constitutes direct discrimination against women contrary to section 13(1) of the Equality Act 2010, which is unlawful unless justified under paragraph 26 of Schedule 3, and that no such justification has yet been shown. Per [45], an individual woman less favourably treated may bring a sex discrimination claim in the county court and it will be open to the Secretary of State to resist it on the ground of justification under paragraph 26.

When relevant

The Supreme Court's treatment of direct sex discrimination by service provision, of the Schedule 3 paragraph 26 exception for separate services for each sex, and of cost as a justification for provision that disadvantages one sex [26]-[43]. It is a sex discrimination case between women and men released on licence and does not consider trans people or gender reassignment [1]-[46], so it supports the toolkit's single-sex services material only by analogy on method: legitimate aim, evidence, alternatives, and the respondent's burden. It does not decide how the Act's single-sex provisions apply to trans people; see FWS-UKSC-2025 for the meaning of 'sex' in the Act. Also relevant to EqIA drafting on the direct versus indirect choice [43]. Decision support, not legal advice.