Sex Discrimination in Employment: Marshall v Southampton Health Authority, Lecture notes of Law

Download Sex Discrimination in Employment: Marshall v Southampton Health Authority and more Lecture notes Law in PDF only on Docsity! MARSHALL v SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY JUDGMENT OF THE COURT 26 February 1986 * In Case 152/84 REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Appeal of England and Wales for a preliminary ruling in the proceedings pending before that court between M. H. Marshall and Southampton and South-West Hampshire Area Health Authority (Teaching) on the interpretation of Council Directive No 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976, L 39, p. 40), THE COURT composed of: Lord Mackenzie Stuart, President, U. Everling and K. Bahlmann (Presidents of Chambers), G. Bosco, T. Koopmans, O. Due and T. F. O'Higgins, Judges, Advocate General: Sir Gordon Slynn Registrar: D. Louterman, Administrator after considering the observations submitted on behalf of the appellant in the main proceedings, by S. Grosz, Solicitor, and M. Beloff, QC during the written procedure and by M. Beloff, QC, during the oral procedure, the respondent, by C. H. Brown, Solicitor, Winchester, during the written procedure, and by A. Hillier, Barrister-at-law, during the oral procedure, * Language of the Case: English. 737 JUDGMENT OF 26. 2. 1986 — CASE 152/84 the United Kingdom, by S. J. Hay, of the Treasury Solicitor's Department, acting as Agent, during the written procedure, and by S. J. Hay and P. Goldsmith, Barrister-at-law, during the oral procedure, the Commission of the European Communities, by its Principal Legal Adviser, A. Toledano Laredo, and J. R. Currall, a member of its Legal Department, acting as Agents, after hearing the Opinion of the Advocate General delivered at the sitting on 18 September 1985, gives the following JUDGMENT (The account of the facts and issues which is contained in the complete text of the judgment is not reproduced) Decision 1 By an order of 12 March 1984, which was received at the Court on 19 June 1984, the Court of Appeal of England and Wales referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Council Directive No 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976, L 39, p. 40). 2 The questions were raised in the course of proceedings between Miss M. H. Marshall (hereinafter referred to as 'the appellant') and Southampton and South- West Hampshire Area Health Authority (Teaching) (hereinafter referred to as 'the respondent') concerning the question whether the appellant's dismissal was in accordance with section 6 (4) of the Sex Discrimination Act 1975 and with Community law. 3 The appellant, who was born on 4 February 1918, was employed by the respondent from June 1966 to 31 March 1980. From 23 May 1974 she worked under a contract of employment as Senior Dietician. 738 MARSHALL V SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY and, on the conditions referred to in paragraph (2), social security. This principle is hereinafter referred to as "the principle of equal treatment".' i4 Article 2 (1) of the directive provides that: ' . . . the principle of equal treatment shall mean that there shall be no discrimi­ nation whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status'. is Article 5 (1) of the directive provides that: 'Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.' Article 5 (2) thereof provides that: 'To this end, Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision.' 741 JUDGMENT OF 26. 2. 1986 — CASE 152/84 i6 Article 1 (2) of the directive provides that: 'With a view to ensuring the progressive implementation of the principle of equal treatment in matters of social security, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application.' i7 Pursuant to the last-mentioned provision, the Council adopted Directive No 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979, L 6, p. 24), which the Member States were to transpose into national law, according to Article 8 (1) thereof, within six years of its notifi­ cation. The directive applies, according to Article 3 (1) thereof, to: '(a) statutory schemes which provide protection against the following risks: sickness, invalidity, old age, accidents at work and occupational diseases, unemployment; (b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a).' is According to Article 7 (1) thereof, the directive is to be: 'without prejudice to the right of Member States to exclude from its scope: (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits'. i9 With regard to occupational social security schemes, Article 3 (3) of the directive provides that with a view to ensuring implementation of the principle of equal 742 MARSHALL v SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY treatment in such schemes 'the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application'. On 5 May 1983 the Commission submitted to the Council a proposal for a directive on the implementation of the principle of equal treatment for men and women in occupational social security schemes (Official Journal 1983, C 134, p. 7). The proposed directive would, according to Article 2 (1) thereof, apply to 'benefits intended to supplement the benefits provided by statutory social security schemes or to replace them'. The Council has not yet responded to that proposal. 20 Observations were submitted to the Court by the United Kingdom and the Commission, in addition to the appellant and the respondent. The first question 2i By the first question the Court of Appeal seeks to ascertain whether or not Article 5 (1) of Directive No 76/207 must be interpreted as meaning that a general policy concerning dismissal, followed by a State authority, involving the dismissal of a woman solely because she has attained or passed 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. 22 The appellant and the Commission consider that the first question must be answered in the affirmative. 23 According to the appellant, the said age limit falls within the term 'working conditions' within the meaning of Articles 1 (1) and 5 (1) of Directive No 76/207. A wide interpretation of that term is, in her opinion, justified in view of the objective of the EEC Treaty to provide for 'the constant improving of the living and working conditions of [the Member States'] peoples' and in view of the wording of the prohibition of discrimination laid down in the above-mentioned articles of Directive No 76/206 and in Article 7 (1) of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement of workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475). 24 The appellant argues furthermore, that the elimination of discrimination on grounds of sex forms part of the corpus of fundamental human rights and therefore of the general principles of Community law. In accordance with the case-law of 743 JUDGMENT OF 26. 2. 1986 — CASE 152/84 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. 35 As the Court emphasized in its judgment in the Burton case, Article 7 of Directive No 79/7 expressly provides that the directive does not prejudice the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible conse­ quences thereof for other benefits falling within the statutory social security schemes. The Court thus acknowledged that benefits tied to a national scheme which lays down a different minimum pensionable age for men and women may lie outside the ambit of the aforementioned obligation. 36 However, in view of the fundamental importance of the principle of equality of treatment, which the Court has reaffirmed on numerous occasions, Article 1 (2) of Directive N o 76/207, which excludes social security matters from the scope of that directive, must be interpreted strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7 (1) (a) of Directive N o 79/7 applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible conse­ quences thereof for other benefits. 37 In that respect it must be emphasized that, whereas the exception contained in Article 7 of Directive No 79/7 concerns the consequences which pensionable age has for social security benefits, this case is concerned with dismissal within the meaning of Article 5 of Directive No 76/207. 38 Consequently, the answer to the first question referred to the Court by the Court of Appeal must be that Article 5 (1) of Dirctive N o 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. 746 MARSHALL v SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY The second question 39 Since the first question has been answered in the affirmative, it is necessary to consider whether Article 5 (1) of Directive No 76/207 may be relied upon by an individual before national courts and tribunals. 40 The appellant and the Commission consider that that question must be answered in the affirmative. They contend in particular, with regard to Articles 2 (1) and 5 (1) of Directive No 76/207, that those provisions are sufficiently clear to enable national courts to apply them without legislative intervention by the Member States, at least so far as overt discrimination is concerned. 4i In support of that view, the appellant points out that directives are capable of conferring rights on individuals which may be relied upon directly before 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 provisions of directives where possible, in particular when construing or applying relevant provisions of national law (judgment of 10 April 1984 in Case 14/83 von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891). Where there is any inconsistency between national law and Community law which cannot be removed by means of such a construction, the appellant submits that a national court is obliged to declare that the provision of national law which is inconsistent with the directive is inapplicable. 42 The Commission is of the opinion that the provisions of Article 5 (1) of Directive No 76/207 are sufficiently clear and unconditional to be relied upon before a national court. They may therefore be set up against section 6 (4) of the Sex Discrimination Act, which, according to the decisions of the Court of Appeal, has been extended to the question of compulsory retirement and has therefore become ineffective to prevent dismissals based upon the difference in retirement ages for men and for women. 43 The respondent and the United Kingdom propose, conversely, that the second question should be answered in the negative. They admit that a directive may, in certain specific circumstances, have direct effect as against a Member State in so 747 JUDGMENT OF 26. 2. 1986 — CASE 152/84 far as the latter may not rely on its failure to perform its obligations under the directive. However, they maintain that a directive can never impose obligations directly on individuals and that it can only have direct effect against a Member State qua public authority and not against a Member State qua employer. As an employer a State is no different from a private employer. It would not therefore be proper to put persons employed by the State in a better position than those who are employed by a private employer. 44 "With regard to the legal position of the respondent's employees the United Kingdom states that they are in the same position as the employees of a private employer. Although according to United Kingdom constitutional law the health authorities, created by the National Health Service Act 1977, as amended by the Health Services Act 1980 and other legislation, are Crown bodies and their employees are Crown servants, nevertheless the administration of the National Health Service by the health authorities is regarded as being separate from the Government's central administration and its employees are not regarded as civil servants. 45 Finally, both the respondent and the United Kingdom take the view that the provisions of Directive N o 76/207 are neither unconditional nor sufficiently clear and precise to give rise to direct effect. The directive provides for a number of possible exceptions, the details of which are to be laid down by the Member States. Furthermore, the wording of Article 5 is quite imprecise and requires the adoption of measures for its implementation. 46 It is necessary to recall that, according to a long line of decisions of the Court (in particular its judgment of 19 January 1982 in Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53), 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. 47 That view is based on the consideration that it would 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. From that the Court deduced that a Member State which has not 748