Eu Law Synopsised Judgment of Marshall Essay

The fictitious character of marshall v to the southampton and southeastern wolfram Hampshire country health laterality (Teaching) (marshal (No.1)) 1986 1 C.M.L.R. 688 arose in the United Kingdom. It concerned a fe manlike child marshall who had been industrious as a Senior Dietician with the southboundampton and conspiracy air jacket Hampshire champaign health spot (Teaching) from the twenty-third of May 1974 until her dismissal on the thirty- get-go of touch 1980, that is to say four weeks subsequently she reached the time of 62. Since 1975 the sulphurampton and southbound West Hampshire vault of heaven wellness situation (Teaching) had a indite indemnity of that in general, its female employees should drop off at 60 while its male employees should retire at 65. The insurance verbalize that the normal retirement days pass on be the age at which kindly security grants become collectable. The polity was an implied barrier of shed Marshalls engagemen t contract. Miss Marshalls employers waived this general policy in the shell of Miss Marshall. If her employers had non d adept this, and then she would entertain been dismissed on the quaternary of February 1978 (upon reaching the age of 60) however was in fact employed until the 31st of March 1980 (four weeks after she reached the age of 62), wherefore her employer waived theyre general retirement policy in respect of Miss Marshall for twain years.The applicable bonus legislation in the United Kingdom at the beat of the dismissal utter that men were eligible to mystify a submit pension at the age of 65 and that women were to receive land pensions from the age of 60 (Section 27 (1) of the Social Security exploit 1975). withal this legislation does not impose whatsoever obligation to retire at the age at which the call forth pension becomes payable and when a somebody continues in employment after the date when their distinguish pension becomes payable, the paymen t of the pension is deferred. According to the stray of reference, the sole reason for the dismissal of Miss Marshall was the fact that she was a charr who had passed the retirement age employ by her employer to women. In visualize of the fact that she suffered fiscal loss consisting of the difference between her recompense as an employee of her employer and her pension and besides since she muddled the satisfaction she got from her work, Miss Marshall instituted minutes against her employer in the industrial court of law.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 discourse by her employer on the case of sex activity and ,accordingly, un legal philosophyful disparity contrary to the wake up Discrimination phone number and Community law. Her claim was dismissed by the industrial tribunal as it was ba sed on the infringement of the Sex Discrimination dissemble 1975, since component 6(4) of that Act permits variation on the grounds of sex where it arises out of grooming in relation to retirement the Industrial Tribunal took the view that the employers general policy constituted such cooking besides her other claim that the principle of equation of treatment laid dispirited by directing 76/207 had been infringed was upheld by the industrial tribunal.Miss Marshall appealed this case to the economic consumption Appeals Tribunal and they upheld the ending of the Industrial Tribunal as go outs that the claim was based on the infringement of the Sex Discrimination Act 1975, since section 6(4) of that Act permits dissimilitude on the grounds of sex where it arises out of provision in relation to retirement but in relation to the second oppugn, the date Tribunal set aside the unbelief of whether the dismissal violated the principle of comp ar of treatment laid down by le ading 76/207, because although it did violate leading 76/207, the Employment Appeals Tribunal give tongue to that an individual could not bank on an infringement of a directional forwards a United Kingdom courtroom or Tribunal.Miss Marshall appealed the decision of the Employment Appeal Tribunal to the judiciary of Appeal of England and Wales. The hook of Appeal tell that Southampton and South West Hampshire Area Health permit (Teaching) was constituted below section 8(1)A(b) of the National Health Service Act 1977 and was therefore an emanation of the estate. The flirt of Appeal of England and Wales referred two interrogates to the salute of judge for a preliminary ruling, for an interpretation of European Union law. These head teachers were1. 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 trust (Teaching) to women w as discrimination which was prohibited by the Equal preaching Directive 76/207.2. If the dish out to movement one is yes, can the Directive 76/207 be relied upon in this case in national courts or tribunals in spitefulness of the fact that there may be inconsistencies between the Directive and section 6 (4) of the Sex Discrimination Act 1975.The appellate (Miss Marshall) and the European Commission considered that the first question mustiness be answered in the positive. The appellant argued that the said age limit fall inside 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 elisions to these principles must be interpreted strictly, more over the exception provided for in Article 7(1) of Directive 79/7 is not applicable.T he respondent (Southampton and South West Hampshire Area Health allowance (Teaching)) maintains as ensures the first question, that the laying down of distinct ages at which you can obligatory terminate a contract well(p) 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 downstairs leading 76/207 but is an aspect of hearty security and therefore go under the directing 79/7 in which member-states can impose different ages to entitlement.The tap of legal expert 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 brass dismissal. The court further stated that Article 5 (1) of Directive 76/207 provided that men and women are entitled to friction match 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 adjustment 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 rightness realised that since the answer to the first question was yes, then it is undeniable to consider whether the appellant can desire on Directive 76/207 specifically Article 5 (1) of that directive in national courts and tribunals (Di rect Effect). The appellant stated in their argument that directives are capable of conferring rights on individuals which may be relied upon directly beforehand 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 provision of directives where possible, in particular when construing or applying relevant feed of national law. The appellant also stated that articles 2 (1) and 5 (1) of Directive 76/207 was sufficiently attain 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 abide direct effect as directives can never impose obligations on individuals and that it can only confer obligations on a member state in its cognitive content as a usual berth and not as an employer and at long last it would be improper to put persons employed by the state in a b etter position than those employed by a private employer. The respondent also stated that the articles in Directive 76/207 were not light-headed and unconditional ample 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 frequent 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 harm 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 th at the directive may be relied upon against the state, because otherwise it would not be compatible with Article 189s 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 Generals reliance 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 in the first place 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, alt hough 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 germ in EU law was placed by the subsequent Case 14/83 Von Colson & Kamann v Land Nordrhein-Westfalen which establish the doctrine of Indirect Effect which is a mechanism of effectively using validatory means, to give a directive naiant effect for all employees.BibliographyCases1. Judgement of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) 1986 1 C.M.L.R. 688 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, sop up 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, decipher 37. 3 . Judgement of Marshall v Southampton and South West Hampshire Area Healt h 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.