J was charged for entrance to a local pool, whereas his wife of the same age was not, on the grounds that he hadn’t reached the pensionable age (65 for men) whereas she had (60 for women). HL held that this was direct discrimination under s.29 SDA 1975 (discrimination in supply of services/facilities etc). Since section 1(1)(a ) was concerned to promote equality of treatment of men and women, the adoption of a gender-based criterion for that purpose was unlawful.
Lord Goff: The words ‘on the ground of sex’ does not mean that to find discrimination, the reason for the action/decision under scrutiny needed to be motivated or reasoned by a discriminatory reason or animus towards women. A benign motive is irrelevant. An objective test is used, as implied by s.1(1)(a) SDA 1975: “Would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?” Answer is obviously yes. This is a ‘but for’ (but which Goff says should not be used for indirect discrimination cases).
Lord Griffiths (dissenting): He understood s.1(1)(a) SDA 1975 as meaning that motive was necessary to find discrimination. Consequently he claimed that the motive was to help those likely to be without earned income