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.”

GILLETT v HOLT

The notorious ambiguity of estoppel is explored here through the unexpected end of a lifelong working relationship built upon trust, duty and a faith of spirit, and as is so often found in matters such as these, a man’s word is not always his bond.

After investing the best part of forty years into a farming alliance that created an almost familial structure, the arrival of a divisive party witnessed the destructive end of a mutually prosperous and seemingly concrete friendship.

When a younger man forged a meaningful relationship with an older farmer, the two men became almost father and son, with the former relying upon, and often following the wisdom of the latter, in accordance with domestic arrangements, career aspirations and even parenting decisions; all while sustaining and enriching the estate’s financial footing through the course of his duties.

This interdependence became the foundation of a commercial enterprise that by definition became more complex; and so, required increased investment from both the employer’s paid advisers and the younger man’s wife as a co-contributor.

During the many years spent together, there had been a significant number of verbal declarations as to the intentions of the elder man when it came time to choose a successor to his sprawling estates, and it was these quasi-promises, along with multiple wills, that coloured the appellant’s choice-making and calculated reluctance to set aside the type of financial provisions one might ordinarily expect.

The mechanics of the business and associated friendship continued to flourish, until the arrival of a trained solicitor, who for one reason of another, began making spurious claims that the appellant and his wife were defrauding the business, and that legal intervention was ultimately necessary.

This course of action and influential advice also led to the couple’s removal from the existing will, whereupon sole beneficial rights instead passed to the now co-defendant.

After an exhaustive cross-examination in the original hearing, the deciding judge awarded against the appellant, despite his claim of proprietary estoppel following the removal of his presence in the will, and inherent reliance upon the goodwill of the defendant during the passage of time.

At appeal, the fluid and therefore often misinterpreted principle of estoppel, was held to close scrutiny, along with the previous findings of the judge; whereupon it became clear that while a degree of effort had been put into the relevance of estoppel, the obvious right to claim had been lost to principles attributable to succession law.

Through the delicate use of equity, the Court then agreed that there was ample evidence to show a detriment under continued reliance, and that in order for a clean break to exist, there needed to be a reversal of fortune on the part of the co-defendant, and a ‘coming good’ on the word of the older man, while the court reminded the parties that:

“[A]ssurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise.”

AHMAD v UNITED KINGDOM

While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.

After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.

Citing article 9(1) of the ECHR (freedom of thought, conscience and religion) and article 14 (prohibition of discrimination), the applicant protested that section 30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm.

Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.

When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under  domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching  staff, pupils or the school as a whole.

After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant.

However, when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly; hence, the Commission dismissed the application, while holding that:

“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”

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