Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and women by treating women more favourably on the ground of their sex; the test to be applied was objective, and if, applying it, the answer would have been that the plaintiff would have received the same treatment but for his sex there was direct discrimination. A benign motive was irrelevant.
The policy was discriminatory. ‘The fallacy, with all respect, which underlies and vitiates [the Court of Appeal’s reasoning] was 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 against men and women in that it treats women more favourably than men ‘on the ground of their sex’. The expression ‘pensionable age’ is no more than a convenient shorthand expression which refers to the age of 60 in a woman and 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.’ Discrimination contrary to the Sex Discrimination Act 1975 did not require an intention to discriminate on the grounds of sex and was not excused by a motive of conferring a benefit.
There are some actions which are inherently discriminatory. The criterion applied for entry to the swimming pool was such a criterion, and it was unnecessary to enquire as to ‘the reason why’ an alleged discriminator has acted as he or she did. (Lord Griffiths dissenting)
Lord Bridge, Lord Goff of Chieveley
[1990] 3 WLR 55, [1990] 2 AC 751, [1990] 2 All ER 607, [1990] ICR 554, [1990] UKHL 6, [1990] IRLR 288
Bailii
Sex Discrimination Act 1975, Social Security Act 1975
England and Wales
Citing:
Appeal from – James v Eastleigh Borough Council CA 1985
The plaintiff was used to going swimming. He was 60. He complained that whereas his wife, of the same age was admitted free, he had had to pay .75p. He claimed sex discrimination.
Held: Though his claim failed, Sir Nicolas Browne-Wilkinson V-C . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
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.
Cited – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – Regina v Moloney HL 21-Mar-1984
The defendant appealed against his conviction for murder.
Held: The appeal was allowed and a conviction for manslaughter substituted.
Lord Bridge of Harwich discussed the case of Hyam: ‘But looking on their facts at the decided cases . .
Cited by:
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Ashton v The Chief Constable of West Mercia Constabulary EAT 27-Jul-2000
Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To . .
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Conteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
Cited – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
Cited – Coll, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Discrimination, Benefits
Leading Case
Updated: 01 November 2021; Ref: scu.182467