M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching): ECJ 26 Feb 1986

ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that for men in the same employment. The health authority paid her the maximum sum of pounds 6,250 which was then permitted as compensation under the Sex Discrimination Act 1975 and the House of Lords referred to the CJEU the question whether it was essential to the due implementation of article 6 of Council Directive 76/207/EEC (‘the Equal Treatment Directive’) that her compensation should not be less than the loss she had sustained and that it should include an award of interest.
Held: The term ‘dismissal’ contained in article 5(1) of Directive no 76/207 must be given a wide meaning; an age limit for the compulsory dismissal of workers pursuant to an employer’s general policy concerning retirement falls within the term ‘dismissal’ construed in that manner, even if the dismissal involves the grant of a retirement pension. In view of the fundamental importance of the principle of equality of treatment for men and women, article 1(2) of Directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7(1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. Article 5(1) of directive no 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive. Wherever 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. It would in fact be incompatible with the binding nature which article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned. Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. In that respect the capacity in which the state acts, whether as employer or public authority, is irrelevant. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with community law. 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 upon as such against such a person.
Article 5(1) of council directive no 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 its capacity as employer, in order to avoid the application of any national provision which does not conform to article 5(1).
C-152/84, [1986] IRLR 140, [1986] ICR 335, R-152/84, [1986] EUECJ R-152/84, [1986] 2 WLR 780, [1986] 1 CMLR 688, [1986] 2 All ER 584, [1986] ECR 723, [1986] QB 401
Bailii
Directive no 76/207 5(1)
European
Cited by:
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CitedDoughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
CitedLittlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
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These lists may be incomplete.
Updated: 21 March 2021; Ref: scu.133907