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James v Eastleigh Borough Council

House of Lords, [1990] ICR 554

The Council provided free swimming facilities for old age pensioners. The qualifying age was accordingly 65 for men and 60 for women.

The House of Lords held that this was sex discrimination, regardless of motive. The test was objective. "But for" his gender, a man of 61 like Mr James would have received the same free swimming facilities as his wife.

My comment

Whilst reaffirming that motive is irrelevant, Lord Phillips in the JFS admissions case (link to pdf on Supreme Court website) did not consider the 'but for' test helpful: he said, "It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision." There was also is discussion on the 'but for' test in Amnesty International v Ahmed, 2009. An example of facts where the test is inappropriate are Martin v Lancehawk Ltd (link to bailii.org).


Employment: Direct discrimination

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Last updated 27h December, 2009