House of Lords, 1990. Full judgment: bailii.org.
The Council provided free swimming facilities for old age pensioners. At the time this meant the qualifying age was 65 for men and 60 for women.
The House of Lords held 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.
It did not matter that the council’s intention or motive was to “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.”
My comment
Whilst reaffirming that motive is irrelevant, Lord Phillips in the JFS admissions case (bailii.org) 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 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).
