James v Eastleigh Borough Council [1990] UKHL 6

In brief

A married couple, both aged 61, visited a public swimming pool. The wife was admitted free (she had reached pensionable age of 60) but the husband was charged 75p (pensionable age for men was 65). The House of Lords held, 3:2, that this was direct sex discrimination under s.1(1)(a) of the Sex Discrimination Act 1975. The correct test is objective — would the complainant have been treated differently but for their sex? — not subjective, so the council's benign motive (to help the retired poor) was irrelevant.

Key provisions

• Lord Bridge, p.5-6 — The 'But For' Test — Objective Causation: Direct discrimination under s.1(1)(a) SDA 1975 (now s.13 Equality Act 2010) is established by asking: would the complainant have received the same treatment but for their sex? The test is objective, not subjective.
• Lord Bridge, p.4-5; Lord Goff, p.13 — Motive and Intention Are Irrelevant to Liability: A discriminator's subjective motive, intention or reason for acting — however benign — does not save conduct that is objectively discriminatory on the ground of a protected characteristic.
• Lord Bridge, p.4; Lord Goff, p.12-13 — A Gender-Based Criterion Is Itself Discriminatory: Where the criterion applied to determine treatment is itself defined by reference to sex (or, by extension, gender reassignment), it is directly discriminatory. Labelling it with a neutral shorthand does not change its character.
• Sir Nicolas Browne-Wilkinson V-C (CA) — Cannot Define the Comparator Class in Discriminatory Terms: A defendant cannot escape a discrimination claim by defining the relevant section of the public in terms that are themselves discriminatory. The comparator must be genuinely equivalent.
• Lord Bridge, p.6; Lord Goff, p.13 — Section 5(3) Comparator — Same Relevant Circumstances: When comparing treatment, the relevant circumstance that must be the same is the one that matters for the claim. A circumstance that is itself discriminatory cannot be treated as a relevant circumstance for the comparison.
• Lord Goff, pp.13-14 — Applying a Gender-Based Criterion Is Treatment on Grounds of Sex: Where a defendant applies to a complainant a gender-based criterion that is unfavourable to persons of their sex, that is treatment on the ground of sex. The words embrace cases where a gender-based criterion is the basis of selection.

When relevant

When establishing direct discrimination under s.13 EA2010 — the starting point for any discrimination analysis.