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.
Held: The council, as local education authority, had discriminated against girls. Discrimination can take place when a woman is disallowed a choice valued to her. In order to show discrimination on the ground of gender under the 1975 Act, it is not necessary to show an intention or motive to discriminate. The Council had provided more grammar school places for boys than for girls, and plainly it knew that it had done so. It had not intended to discriminate against the girls but in fact it had done so. Whether treatment is less favourable is to be determined objectively. It is not enough that a claimant believes it to be less favourable.
Lord Goff of Chieveley said: ‘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 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 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.’
Lord Goff of Chieveley
[1989] AC 1155, [1989] 1 All ER 769, [1988] IRLR 430, [1988] 3 WLR 837, (1988) 86 LGR 741
Sex Discrimination Act 1975
England and Wales
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Updated: 20 February 2021; Ref: scu.185202