Marshall v Southampton Health Authority
| Marshall v Southampton and SW Hampshire AHA | |
|---|---|
 | |
| Court | European Court of Justice |
| Citation(s) | (1986) Case 152/84, [1986] ECR 723 |
| Keywords | |
| Direct effect | |
Marshall v Southampton and South West Hampshire Area Health Authority (1986) Case 152/84 is an EU law case, concerning the conflict of law between a national legal system and European Union law.
Facts
Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. She was an employee of an Area Health Authority, a body established by the UK government under the National Health Service Act 1977, as amended by the Health Services Act 1980.
Miss Marshall was dismissed after 14 years on the 31st of March 1980, approximately four weeks after attaining the age of 62, despite her expressing a willingness to continue in employment until the age of 65 (4th Feb 1983). The sole reason for her dismissal was the fact she had passed 'the retirement age', AHA’s policy was to make women compulsorily retire at 60, but men at 65.'
Section 27 (1) and 28 (1) of the Social Security Act 1975 provided state pensions were to be granted to men at 65 and woman at 60, though notably did not impose any obligation to retire at the age at which the state pension becomes payable.
The AHA were able to waive the term, which was deemed an implied term of Ms Marshall's contract of employment and had in fact done so for a further two years after she attained the age of 60.
Given Miss Marshall suffered financial loss, namely the difference between her earnings as an employee and her pension and since she lost the satisfaction gained from work she initiated proceedings before an industrial tribunal. Contending her dismissal constituted discriminatory treatment on the ground of sex, contrary to the sexual discrimination act and community law. The tribunal dismissed the claim in so far as it was based on infringement of the sexual discrimination act, since s 6 (4) permits discrimination of the grounds of sex in regards to retirement. However the claim on the basis that the principle of equal treatment laid down by directive 76/207 was upheld.
The employment appeal tribunal affirmed the industrial tribunal on the first point, yet set aside the decision on the second point, on the basis that an individual could not rely upon such a violation in proceedings before a united kingdom court or tribunal.
The English Court of Appeal found the Area Health Authority an ‘emanation of the State’, observing that the AHA respondent was constituted under s 8 (1) a (b) of the national health service act 1977. The court made reference of two questions for preliminary ruling to the Court of Justice. Firstly whether the respondents dismissal on the grounds that she was a woman who had passed the normal retiring age was an act of discrimination prohibited by the directive. Secondly, if the answer to the first is affirmative, whether or not the equal treatment directive can be relied upon by the appellant in the circumstances in national courts or tribunals, not withstanding the inconsistency, if any between the directive and the sexual discrimination act.
Judgment
Advocate General Opinion
Advocate General Slynn argued the ‘State’ should be construed broadly, to cover all organs. He said ‘horizontal effect’ of directives would ‘totally blur the distinction between directives and regulations’ in the Treaty.
Court of Justice
The ECJ, in a full court of 13 judges, held there was no horizontal direct effect. It does not matter what capacity a state is acting. Thus it fell to enquire whether the NHS was entitled to be considered as an ‘individual’ or was the state, and that was a matter for the national court.
| “ | 48. ... according to article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each member state to which it is addressed'. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied on as such against such a person.
49. ... In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Union law. |
” |
See also
Notes
References
- Case 152/84