In James v Eastleigh Borough Council (14 June 1990) EOR33B, the House of Lords holds that the test for determining whether there has been direct discrimination is "would the complainant have received the same treatment from the defendant but for his or her sex?". It is not necessary for complainants to prove in addition that the subjective reason they were treated less favourably was because of their gender.
In a sex discrimination case the crucial question is whether the complainant would have received the same treatment but for his or her sex.
An employer may not refuse to employ a man in a job which involves duties that need to be done by a woman in order to preserve decency or privacy if the employer already has women employees whom it would be reasonable and not unduly inconvenient to employ on the duties concerned.
In R v Birmingham City Council ex parte The Equal Opportunities Commission (13.5.88) EOR22A, in the course of upholding a finding that selective provision by the council of more grammar school places for boys than girls was unlawfully discriminatory, the Court of Appeal confirms that a subjective intention to discriminate is not necessary in order to show direct discrimination.
HR and legal information and guidance relating to direct sex discrimination.