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The case of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 arose in the United Kingdom. It concerned a Miss Marshall who had been employed as a Senior Dietician with the Southampton and South West Hampshire Area Health Authority (Teaching) from the 23rd of May 1974 until her dismissal on the 31st of March 1980, that is to say four weeks after she reached the age of 62. Since 1975 the Southampton and South West Hampshire Area Health Authority (Teaching) had a written policy of that in general, its female employees should retire at 60 while its male employees should retire at 65. The policy stated that “the normal retirement age will be the age at which social security pensions become payable”.
The policy was an implied term of Miss Marshall’s employment contract. Miss Marshall’s employers waived this general policy in the case of Miss Marshall. If her employers had not done this, then she would have been dismissed on the 4th of February 1978 (upon reaching the age of 60) but was in fact employed until the 31st of March 1980 (four weeks after she reached the age of 62), therefore her employer waived they’re general retirement policy in respect of Miss Marshall for two years.
The applicable pension legislation in the United Kingdom at the time of the dismissal stated that men were eligible to receive a state pension at the age of 65 and that women were to receive state pensions from the age of 60 (Section 27 (1) of the Social Security Act 1975).
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However this legislation does not impose any obligation to retire at the age at which the state pension becomes payable and when a person continues in employment after the date when their state pension becomes payable, the payment of the pension is deferred. According to the order of reference, the sole reason for the dismissal of Miss Marshall was the fact that she was a woman who had passed the retirement age applied by her employer to women. In view of the fact that she suffered financial loss consisting of the difference between her earnings as an employee of her employer and her pension and also since she lost the satisfaction she got from her work, Miss Marshall instituted proceedings against her employer in the Industrial Tribunal.
She contended that “her dismissal at the date and for the reason indicated by her employer which was that she was a woman who had passed the retirement age applied by her employer to women constituted discriminatory treatment by her employer on the grounds of sex and ,accordingly, unlawful discrimination contrary to the Sex Discrimination Act and Community law”. Her claim was dismissed by the industrial tribunal as it was based on the “infringement of the Sex Discrimination Act 1975, since section 6(4) of that Act permits discrimination on the grounds of sex where it arises out of 'provision in relation to retirement' ; the Industrial Tribunal took the view that the employers general policy constituted such provision” but her other claim that the principle of equality of treatment laid down by directive 76/207 had been infringed was upheld by the industrial tribunal.
Miss Marshall appealed this case to the Employment Appeals Tribunal and they upheld the decision of the Industrial Tribunal as regards that the claim was based on the infringement of the Sex Discrimination Act 1975, since section 6(4) of that Act permits discrimination on the grounds of sex where it arises out of 'provision in relation to retirement but in relation to the second question, the Employment Tribunal set aside the question of whether the dismissal violated the principle of equality of treatment laid down by Directive 76/207, because although it did violate directive 76/207, the Employment Appeals Tribunal said that an individual could not rely on an infringement of a directive before a United Kingdom Court or Tribunal.
Miss Marshall appealed the decision of the Employment Appeal Tribunal to the Court of Appeal of England and Wales. The Court of Appeal stated that Southampton and South West Hampshire Area Health Authority (Teaching) was “constituted under section 8(1)A(b) of the National Health Service Act 1977 and was therefore an “emanation of the State””. The Court of Appeal of England and Wales referred two questions to the Court of Justice for a preliminary ruling, for an interpretation of European Union law. These questions were;
1. Whether the dismissal of Miss Marshall after she was sixty and on the grounds that she was a woman who had passed the retirement age applied by the Southampton and South West Hampshire Area Health Authority (Teaching) to women was discrimination which was prohibited by the Equal Treatment Directive 76/207.
2. If the answer to question one is yes, can the Directive 76/207 be relied upon in this case in national courts or tribunals in spite of the fact that there may be inconsistencies between the Directive and section 6 (4) of the Sex Discrimination Act 1975.
The appellant (Miss Marshall) and the European Commission considered that the first question must be answered in the positive. The appellant argued that the said age limit falls within the term “working conditions” within the meaning of articles 1 (1) and 5 (1) of Directive 76/207. Furthermore the appellant argues that the discrimination on the grounds of sex is one of the main reasons for having fundamental human rights and therefore the general principles of EU community law, and the exceptions to these principles must be interpreted strictly, moreover the exception provided for in Article 7(1) of Directive 79/7 is not relevant.
The respondent (Southampton and South West Hampshire Area Health Authority (Teaching)) maintains as regards the first question, that the laying down of different ages at which you can compulsory terminate a contract just reflects the minimum ages stated by the State Social Security Scheme in the U.K. The respondent also considers that the state pension does not fall under directive 76/207 but is an aspect of social security and therefore falls under the directive 79/7 in which member-states can impose different ages to entitlement.
The Court of Justice decided on the first question that the directive it fell under was Directive 76/207 as the question it was referred concerns the fixing of an age limit as to when to terminate employment following a general policy of dismissal. The question therefore relates to the conditions and rules governing dismissal. The court further stated that Article 5 (1) of Directive 76/207 provided that men and women are entitled to equal treatment in working conditions which includes conditions governing dismissal meaning that men and women are guaranteed the same working conditions without discrimination on grounds of sex.
Following a policy of compulsory dismissing workers even if they get a retirement pension still falls under the term “dismissal”. The Court summed up the answer to the first question in saying that article 5 (1) of Directive 76/207 must be interpreted in meaning that having a policy whereby you dismiss a person for the reasons being that she is a women who has reached the age of qualifying for a state pension, when the age is different for men as it is to women, constitutes discrimination on the grounds of sex, contrary to Directive 76/207.
The Court of Justice realised that since the answer to the first question was yes, then it is necessary to consider whether the appellant can rely on Directive 76/207 specifically Article 5 (1) of that directive in national courts and tribunals (Direct Effect). The appellant stated in their argument that “directives are capable of conferring rights on individuals which may be relied upon directly before the courts of the member-States; national courts are obliged by virtue of the binding nature of a directive, in conjunction with Article 5 of the EEC Treaty, to give effect to the provisions of directives where possible, in particular when construing or applying relevant provisions of national law”. The appellant also stated that articles 2 (1) and 5 (1) of Directive 76/207 was sufficiently clear to let the courts apply them, a view which the commission shared with the appellant.
The respondent stated in its argument that the directive should not have direct effect as directives can never impose obligations on individuals and that it can only confer obligations on a member state in its capacity as a public authority and not as an employer and finally it would be improper to put persons employed by the state in a better position than those employed by a private employer. The respondent also stated that the articles in Directive 76/207 were not clear and unconditional enough to give rise to direct effect.
In answering the second question, the Court of Justice stated that it does not matter whether the state is an employer or a public authority when an individual is relying on a directive against a member state in legal proceedings. This is necessary to prevent the state taking advantage of its own failure to comply with community law. The Court of Justice stated that the articles in the Directive 76/207 are sufficiently precise and clear in that they prohibit “any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, in a general manner”.
Where a state fails to implement a directive by the end of the time period given, and if the provisions of the directive are unconditional and sufficiently precise, the Court of Justice ruled that the directive may be relied upon against the state, because otherwise it would not be compatible with Article 189’s binding nature on directives. The Court of Justice answered the second question in saying that Article 5 in Directive 76/207 which “Prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal may be relied upon as against a state authority acting in capacity as an employer”. The Advocates General’s opinion concurred with the judgement of this case.
The legal significance of this case is that an individual may only rely on a directive in a national court when suing a public body but the term public body has been given a wide interpretation by the European Court of Justice. Although Direct Effect was founded originally in the Case 26/62,Van Gend en loos [1963] ECR 1, in the Marshall case we have just looked at, the vertical nature of the directive meant that Marshall could take advantage of it, although an employee in the private sector would not have been able to. This would seem to give public sector employees an unfair advantage over their private sector counterparts, but this glitch in EU law was fixed by the subsequent Case 14/83 Von Colson & Kamann v Land Nordrhein-Westfalen which established the doctrine of Indirect Effect which is a mechanism of effectively using indirect means, to give a directive horizontal effect for all employees.
Bibliography
Cases
1. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688
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[ 1 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 3, line 11. [ 2 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 11, line 37. [ 3 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 11, line 36. [ 4 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 11, line 51. [ 5 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 15, line 37 [ 6 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 17, line 2. [ 7 ]. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 page 17, line 19.
Eu Law Synopsised Judgment of Marshall. (2017, Feb 06). Retrieved from https://studymoose.com/eu-law-synopsised-judgment-of-marshall-essay
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