James v Eastleigh Borough Council
HOUSE OF LORDS
 2 AC 751,  2 All ER 607,  3 WLR 55, 88 LGR 756,  ICR 544
HEARING-DATES: 28, 29 MARCH, 14 JUNE 1990
14 June 1990
Sex discrimination -- Provision of goods, facilities or services -- Entry to swimming pool -- Pensioners admitted free to pool -- Plaintiff and his wife both aged 61 -- Wife admitted free because she had reached pensionable age for women of 60 -- Plaintiff required to pay because he had not reached pensionable age for men of 65 -- Whether plaintiff unlawfully discriminated against on grounds of sex -- Sex Discrimination Act 1975, ss 1(1)(a), 29.
The plaintiff and his wife, who were both aged 61, visited a public swimming pool run by the defendant council, which had adopted a policy of providing free swimming facilities for persons of pensionable age. Since the effect of that policy was that women over 60 were admitted free while men were not admitted free until they were 65, the plaintiff was charged 75p for admission while his wife was admitted free. The plaintiff brought an action against the council claiming that it had unlawfully discriminated against him on the grounds of sex, contrary to s 29 of the Sex Discrimination Act 1975, because the refusal to provide him with free swimming while providing it for his wife amounted to less favourable treatment and therefore discrimination under s 1(1)(a) of that Act. The judge dismissed the claim and on appeal the Court of Appeal affirmed his decision, on the grounds that the council had not intended to discriminate between men and women in the provision of free swimming but had intended to provide free swimming to pensioners and therefore it had not been guilty of unlawful discrimination merely because the difference in pensionable age between men and women resulted in the plaintiff and his wife being treated differently when they visited the council's swimming pool. The plaintiff appealed to the House of Lords.
Held (Lord Griffiths and Lord Lowry dissenting) -- Since the statutory pensionable age of 60 for women and 65 for men was itself a gender-based criterion which directly discriminated between men and women, in that it treated women more favourably than men 'on the ground of sex' for the purposes of s 1(1)(a) of the 1975 Act, any other differential treatment of men and women which adopted the same criterion likewise involved gender-based discrimination which was unlawful under s 1(1)(a), regardless of whether the person doing the discriminatory act used the shorthand expression 'pensionable age' or spelt out in full that the act applied to women aged 60 and men aged 65. Furthermore, it was irrelevant whether the motive for the discriminatory act was benign or not, since (Lord Griffiths concurring) whether a person afforded less favourable treatment to another because of his sex was a matter to be determined objectively. Accordingly, since the plaintiff would have received the same treatment as his wife but for his sex, the council had discriminated against him 'on the grounds of his sex' for the purposes of s 1(1)(a), notwithstanding that it had not intended to discriminate between men and women but had intended to provide free swimming to pensioners. It followed that the council had been guilty of unlawful discrimination in refusing to provide the plaintiff with swimming facilities on the same terms as women of the same age. Accordingly, the appeal would be allowed.
Equal Opportunities Commission v Birmingham City Council  1 All ER 769 applied.
Decision of the Court of Appeal  2 All ER 914 reversed.
For sex discrimination generally, see 16 Halsbury's Laws (4th edn) para 771: 2.
For the Sex Discrimination Act 1975, ss 1, 29, see 6 Halsbury's Statutes (4th edn) 699, 719.
Armagh DC v Fair Employment Agency  NI 346, NI CA.
Equal Opportunities Commission v Birmingham City Council  1 All ER 769,  AC 1155,  2 WLR 520, HL.
Jenkins v Kingsgate (Clothing Productions) Ltd  1 WLR 1485, EAT.
Ministry of Defence v Jeremiah  3 All ER 833,  QB 87,  3 WLR 857, CA.
Peake v Automotive Products Ltd  QB 780,  2 WLR 751, EAT rvsd  1 All ER 106,  QB 233,  3 WLR 853, CA.
R v Commission for Racial Equality, ex p Westminster City Council  ICR 770 affd in part ICR 827, CA.
R v Moloney  1 All ER 1025,  AC 905,  2 WLR 648, HL.
R v Secretary of State for Education and Science, ex p Keating (1985) 84 LGR 469.
The plaintiff, Peter James, appealed with the leave of the Appeal Committee of the House of Lords given on 12 July 1989 against the decision of the Court of Appeal (Sir Nicolas Browne-Wilkinson V-C, Parker and Nourse LJJ) ( 2 All ER 914,  QB 61) on 26 April 1989 dismissing his appeal against the decision of his Honour Judge Tucker QC sitting in the Southampton County Court on 28 October 1987, whereby he dismissed the plaintiff 's claim that the respondents, Eastleigh Borough Council, had discriminated against him contrary to s 29 of the Sex Discrimination Act 1975. The facts are set out in the opinion of Lord Bridge.
Anthony Lester QC, Michael Kent and Dinah Rose for the plaintiff.
Michael Beloff QC and Peter J H Towler for the council.
Their Lordships took time for consideration. 14 June. The following opinions were delivered.
PANEL: LORD BRIDGE OF HARWICH, LORD GRIFFITHS, LORD ACKNER, LORD GOFF OF CHIEVELEY AND LORD LOWRY
JUDGMENTBY-1: LORD BRIDGE OF HARWICH
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 ss 1(1)(a) and 29 of the Sex Discrimination Act 1975. The claim was heard by his Honour Judge Tucker QC 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) ( 2 All ER 914,  QB 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 1975 Act. The phrase 'pensionable age' is a term of art derived from the definition in s 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 than 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 ss 29(1) and 1(1)(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 s 29(1) was the section of the public 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 LJJ agreed, said ( 2 All ER 914 at 917--918,  QB 61 at 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 s 1 of the 1975 Act. 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 s 1(1)(a). The condition which the local authority applies 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 s 1(1)(b) if the plaintiff 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 plaintiff 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 plaintiff 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 ( 2 All ER 914 at 918,  QB 61 at 73--74):
'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 all. The condition was simply that the applicant had to be of pensionable age. The undoubtedly discriminatory effect of the condition only emerges when one gets to the next question, i e at what age to men and women become pensionable? The question is whether the council's policy amounts to direct discrimination ''on the ground of his sex'' within s 1(1)(a) or indirect discrimination within s 1(1)(b) by reason 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 then summarised the submissions of counsel for the plaintiff as follows:
'Counsel for [the plaintiff ] forcefully submitted that there is direct discrimination in this case. He submitted that discrimination is ''on the ground of '' sex within s 1(1)(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 rejecting these submissions ( 2 All ER 914 at 918--919,  QB 61 at 74--75):
'In my judgment s 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 counsel'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 sub-s (1)(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 a condition would be a substantial cause of detriment to the plaintiff by reason of his or her sex, i e it would fall within counsel's causation test and therefore constitute direct discrimination under sub-s (1)(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.'
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 ground of their sex'. This was readily conceded by counsel for the council 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 counsel 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 s 1(1)(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 Equal Opportunities Commission v Birmingham City Council 1 All ER 769,  AC 1155. In that case the council, as local education authority, were held to have discriminated against girls under s 1(1)(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 said ( 1 All ER 769 at 774,  AC 1155 at 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 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 to liability it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the grounds of sex. Indeed, as counsel for the commission 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 1975 Act. This is well established in a long line of authority: see, in particular, Jenkins v Kingsgate (Clothing Productions) Ltd  1 WLR 1485 at 1494 per Browne-Wilkinson J and R v Secretary of State for Education and Science, ex p Keating (1985) 84 LGR 469 at 475 per Taylor J see also Ministry of Defence v Jeremiah  3 All ER 833 at 836,  QB 87 at 98 per Lord Denning MR. 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 Equal Opportunities Commission v Birmingham City Council was delivered after the instant case had been argued in the Court of Appeal but before it delivered its judgment. It did not, therefore, have the advantage of argument as to the effect of the
decision. It 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 need, 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 s 1(1)(b) arises only where the 'requirement or condition' applied by the 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 s 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 it fell into the same error itself in making the comparisons necessary under s 1. Section 5(3) requires that in comparing the cases of persons of different sex under s 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 s 1 any more than it can be used to define a 'section of the public' under
s 29. It is only by wrongly treating pensionable age as a relevant circumstance under s 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 s 1(1)(a) but may involve direct discrimination under s 1(1)(b). On a proper application of s 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 s 93 of the Transport Act 1985 men over 65 and women over 60 are eligible to receive concessions: s 93(7)(a). Similarly, by reg 7 of the National Health Service (Charges for Drugs and Appliances) Regulations 1980, SI 1980/1503, 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 s 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 ss 1(1)(a) and 29 of the 1975 Act 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. I would propose that there should be no order for the payment of costs.
JUDGMENTBY-2: LORD GRIFFITHS
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 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. 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 s 1(1)(a). Suppose that the council had added that they 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 R v Commission for Racial Equality, ex p Westminster City Council  ICR 770. I was a party to the decision in Equal Opportunity Commission v Birmingham City Council  1 All ER 769,  AC 1155 and agreed with the speech of Lord Goff. 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 s 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. 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.
JUDGMENTBY-3: LORD ACKNER
LORD ACKNER. My Lords, I so entirely agree with the views expressed by my noble and learned friends Lord Bridge and Lord Goff 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 the plaintiff and his wife, on seeking free admission to the swimming pool, would have been asked to provide proof of their ages. Having done so the plaintiff 's wife 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 the plaintiff, 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 the plaintiff was, to quote the important words of s 1(1)(a) of the Sex Discrimination Act 1975, 'on the ground of his sex' and therefore unlawful being contrary to that subsection and s 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 counsel for the council before your Lordships, that the council's policy was discriminatory. The council were 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-aga-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 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' (see  2 All ER 914 at 918,  QB 61 at 73 per Sir Nicolas Browne-Wilkinson V-C). 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 Equal Opportunities Commission v Birmingham City Council 1 All ER 769,  AC 1155).
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.
JUDGMENTBY-4: LORD GOFF OF CHIEVELEY
LORD GOFF OF CHIEVELEY. My Lords, for the reasons given by my noble and learned friend Lord Bridge, I too would allow the appeal. However, since a passage in the speech which I delivered in Equal Opportunities Commission v Birmingham City Council  1 All ER 769 at 774,  AC 1155 at 1193--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 s 1(1)(a) of the Sex Discrimination Act 1975, which is usually said to be concerned with cases of 'direct' discrimination, he said ( 2 All ER 914 at 918--919,  QB 61 at 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 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. Sir Nicolas Browne-Wilkinson V-C, 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, Sir Nicolas Browne-Wilkinson V-C 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 s 1(1)(a) as effectively to emasculates 1(1)(b). He said ( 2 All ER 914 at 919,  QB 61 at 75):
'There is a further objection to counsel'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 sub-s (1)(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 a condition would be a substantial cause of detriment to the plaintiff by reason of his or her sex, ie it would fall within counsel's causation test and therefore constitute direct discrimination under sub-s (1)(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 Sir Nicolas Browne-Wilkinson V-C'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 on his or her sex. Now I have difficulty in seeing how s 1(1)(b) can sensibly apply in the case of such a requirement or condition. This is because two of the conditions for the application of s 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 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 inquire 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 s 1(1)(a). I wish however to point out that the fact that such cases fall for consideration under s 1(1)(a), rather than s 1(1)(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 Sir Nicolas Browne-Wilkinson V-C's reasoning which is based on the wording of s 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 they 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 they have adopted as the basis for a concession of free entry to its swimming pool, they did on the ground of sex treat him less favourably than it treated women of the same age, and in particular his wife. 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 on 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 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.
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 s 1(1)(a) of the 1975 Act, 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 1975 Act, 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 Sir Nicolas Browne-Wilkinson V-C, attention was focused on 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 Lord Bridge in R v Moloney  1 All ER 1025 at 1027,  AC 905 at 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 on 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.
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 s 1(1)(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 on the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under s 1(1)(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 s 1(1)(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 Equal Opportunities Commission v Birmingham City Council  1 All ER 769 at 774,  AC 1155 at 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 on the problem of construction of s 1(1) of the 1975 Act, and to express more fully the reasons for the solution of that problem which I myself favour.
JUDGMENTBY-5: LORD LOWRY
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 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 s 1(1)(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 plaintiff contrary to s 1(1)(a)? With a view to construction, the crucial words are 'on the ground of his sex'. Counsel for the plaintiff 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. Counsel 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 the construction of counsel for the plaintiff and I proceed to explain why I do so.
On reading s 1(1)(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. Counsel for the council gave your Lordships a definition of 'ground' from the Oxford English Dictionary (2nd edn, 1989) vol 6, 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.'
Counsel for the plaintiff 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 counsel for the council put it, s 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 plaintiff 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 s 1(1)(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 Browne-Wilkinson V-C said ( 2 All ER 914 at 916,  QB 61 at 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 Sex Discrimination Act 1975 renders such discrimination unlawful.'
Then (I am simply dealing with the construction point) he said ( 2 All ER 914 at 918,  QB 61 at 74):
'Counsel for [the plaintiff ] forcefully submitted that there is direct discrimination in this case. He submitted that discrimination is 'on the ground of ' sex within s 1(1)(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 do not accept that construction of s 1. In my judgment s 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 counsel for the council pointed out, s 1(1) is referring throughout to the activities of the alleged discriminator. 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?'' '
I agree with and adopt those observations of Sir Nicolas Browne-Wilkinson V-C, which I consider to be entirely consistent with the decision reached by your Lordships' House in Equal Opportunities Commission v Birmingham City Council  1 All ER 769,  AC 1155, on which counsel for the plaintiff has so strongly relied and to which I must soon give my attention.
While still on the construction point, I might mention, Armagh DC v Fair Employment Agency NI 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 thosecircumstances.'
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 354--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 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. ( QB 780 at 787), the case about releasing women early from their work, Phillips J. stated: ''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.' (My original emphasis.)
The Peake decision was reversed on appeal (see  1 All ER 106,  QB 233), but has subsequently been recognised as correct: see Ministry of Defence v Jeremiah  3 All ER 833,  QB 87. Section 66 of the 1975 Act deals with the enforcement of claims under Pt III, which includes the relevant s 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 counsel for the council persuasively contends, the subjective construction of s 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 Sir Nicolas Browne-Wilkinson V-C stated in the Court of Appeal, counsel for the plaintiff 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'. Counsel for the plaintiff rightly submits that the policy of the 1975 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 s 1(1)(b)(ii)) and some is accepted (see ss 6(4) and 51 (now 51A as amended by s 3 of the Employment Act 1989)). The phrase 'on the 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 s 1(1)(a). As I have said, the plaintiff relies strongly on the Birmingham case. The relevant extracts from the speech of Lord Goff have already been cited by him and by my noble and learned friend Lord Bridge. Your Lordships will recall that Lord Goff said ( 1 All ER 769 at 774,  AC 1155 at 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 s 66(3) of the 1975 Act), is not a necessary condition to liability it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the grounds of sex. Indeed, as counsel for the commission 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 1975 Act. This is well established in a long line of authority: see, in particular, Jenkins v Kingsgate(Clothing Productions) Ltd  1 WLR 1485 at 1494 per Browne-Wilkinson J and R v Secretary of State for Education and Science, ex p Keating (1985) 84 LGR 469 at 475 per Taylor J
see also Ministry of Defence v Jeremiah  3 All ER 833 at 836,  QB 87 at 98 per Lord Denning MR. 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 s 1(1)(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 they 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 they did from necessity (the defence put up by the council) was of no avail against the established fact that the council deliberately discriminated against the girls in the way I have described. The plaintiff 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 s 1(1)(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 they were treating the girls less favourably than the boys and that owing to the shortage of school places they 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 s 1(1)(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 plaintiff '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 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 lessfavourably 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 strongbody 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 have 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 s 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 plaintiff, 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 the suggestion of counsel for the council 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 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 plaintiff '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 plaintiff 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 plaintiff 's argument seemed to infer that the council's action, since it was not indirect discrimination under s 1(1)(b), must be caught by s 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 s 1(1)(a) if that meaning is clear. Furthermore, I would not, in the absence of argument on both sides, be prepared to accept that Sir Nicolas Browne-Wilkinson V-C was wrong to contemplate the possibility of a claim of indirect discrimination on the present facts. The key words in s 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 Sir Nicolas Browne-Wilkinson V-C acted inconsistently when he rejected the test of the judge in the county court and yet held s 1(1)(b) to be relevant if relied on. Your Lordships will already have noted that the plaintiff, whose cause was promoted throughout by the Equal Opportunities Commission, expressly relied on s 1(1)(a) of the 1975 Act to the exclusion of s 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.
Ewing Hickman & Clark, Southampton (for the plaintiff ); Sharpe Pritchard, agents for N R Smith; Eastleigh (for the council).