MARSHALL v SOUTHAMPTON AND SOUTH WEST AREA HEALTH AUTHORITY NO.1

Dismissal upon grounds of sexual discrimination and the direct effect of Community law Directives in issues of state employment, were the key ingredients to this matter, when a former employee of the South-West Hampshire Area Health Authority was subjected to unexpected termination of her employment, despite intimations that her post was secure beyond policy requirements.

Having joined the department in 1974, the applicant had enjoyed working as a Senior Dietician, until she reached the contracted retirement age (five years earlier than her male colleagues); at which point, it was agreed that she could continue working, although no specific end date was discussed.

However, the applicant was dismissed without notice two years later, upon grounds that she was a woman; and so, considered beyond retirement age and surplus to requirements.

Immediately after her departure, the applicant sought to challenge the decision through the enforcement of Council Directive 76/207/EEC, which supports the ‘principle of equal treatment’, inasmuch as article 1(1), (2), 2(1) and 5 collectively confer Member State obligations to apply and maintain the equal treatment of men and women with regard to employment, promotion, training, working conditions, social security, dismissal and the prohibition of any discrimination (whether directly or indirectly), while these rights applied to all manner of employment arrangements.

In the first instance, the industrial tribunal denied her claim under the section 6(4) of the Sex Discrimination Act 1975, which provided that discrimination by an employer was exempt under retirement conditions, and that the pensionable age of women under section 27(1) of the Social Security Act 1975 supported the age of retirement through the  availability of state pensions as of sixty years of age. 

Upon dismissal of her appeal, she challenged the findings again, whereupon the Court of Appeal was forced to raise two questions with a view to a preliminary ruling under article 177 EC, namely: 

1. Whether the appellant’s dismissal after reaching retirement age on the basis that she was a woman constituted sexual discrimination under Directive 76/207?

2. That if so agreed, whether the terms of the Directive allowed for direct effect given the conflict between domestic legislation and Community law?

And so, having referred the case to the European Court of Justice, it was held that while the Health Authority relied upon the narrowness of meaning when determining the powers of legislation, they failed to appreciate that all Member States are obliged to adopt the principles of a Directive within a designated period (which on this occasion had long since elapsed); and that when doing so, must adjust or if necessary, remove the applicable statute to give full effect to the meaning of the Directive. 

It was further noted how the Health Authority had sought to avoid the duties called for under Community law, while expanding the terms of the Social Security Act 1975 beyond their meaning when deciding that pensionable age was a prerequisite to retirement, which amounted to nothing more than overt sexual discrimination; against which, the appellant had a valid and lawful right of claim.

Looking next to the effect of Directive 76/207/EEC, it was argued by the Health Authority and the United Kingdom that the terms within were prescribed for the benefit or use of the Member State and not the individual, and that the terms of an non-implemented Directive excluded contracts between private parties. 

It was further argued that the State was entitled to be seen as a private employer for the purposes of the case, thus it was contended that the appellant was denied the right to bring action against the State; and so, a review of the Sex Discrimination Act 1975 was required before the continuation of proceedings. 

In stark contrast, the Court upheld the appeal, on grounds that a failure to adopt the Directive had rendered the Health Authority liable for penalty and thereby accountable at law as an emanation of the State, therefore a citizen could claim such rights within the domestic court in lieu of their non-implementation, before reminding the parties that:

“[W]herever the provisions of a Directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the Directive in national law by the end of the period prescribed or where it fails to implement the Directive correctly.”