Eu Law Synopsised Judgment of Marshall

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  • Topic: Employment Appeal Tribunal, Tribunal, European Union law
  • Pages : 6 (2091 words )
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  • Published : February 26, 2013
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EU Law Assignment by Mark Ryder (1571728)

The case of Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Marshall (No.1)) [1986] 1 C.M.L.R. 688 arose in the United Kingdom. It concerned a Miss Marshall who had been employed as a Senior Dietician with the Southampton and South West Hampshire Area Health Authority (Teaching) from the 23rd of May 1974 until her dismissal on the 31st of March 1980, that is to say four weeks after she reached the age of 62. Since 1975 the Southampton and South West Hampshire Area Health Authority (Teaching) had a written policy of that in general, its female employees should retire at 60 while its male employees should retire at 65. The policy stated that “the normal retirement age will be the age at which social security pensions become payable”. The policy was an implied term of Miss Marshall’s employment contract. Miss Marshall’s employers waived this general policy in the case of Miss Marshall. If her employers had not done this, then she would have been dismissed on the 4th of February 1978 (upon reaching the age of 60) but was in fact employed until the 31st of March 1980 (four weeks after she reached the age of 62), therefore her employer waived they’re general retirement policy in respect of Miss Marshall for two years. The applicable pension legislation in the United Kingdom at the time of the dismissal stated that men were eligible to receive a state pension at the age of 65 and that women were to receive state pensions from the age of 60 (Section 27 (1) of the Social Security Act 1975). However this legislation does not impose any obligation to retire at the age at which the state pension becomes payable and when a person continues in employment after the date when their state pension becomes payable, the payment of the pension is deferred. According to the order of reference, the sole reason for the dismissal of Miss Marshall was the fact that she was a woman who had passed the retirement age applied by her employer to women. In view of the fact that she suffered financial loss consisting of the difference between her earnings as an employee of her employer and her pension and also since she lost the satisfaction she got from her work, Miss Marshall instituted proceedings against her employer in the Industrial Tribunal. 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 treatment by her employer on the grounds of sex and ,accordingly, unlawful discrimination contrary to the Sex Discrimination Act and Community law”. Her claim was dismissed by the industrial tribunal as it was based on the “infringement of the Sex Discrimination Act 1975, since section 6(4) of that Act permits discrimination on the grounds of sex where it arises out of 'provision in relation to retirement' ; the Industrial Tribunal took the view that the employers general policy constituted such provision” but her other claim that the principle of equality of treatment laid down by directive 76/207 had been infringed was upheld by the industrial tribunal.

Miss Marshall appealed this case to the Employment Appeals Tribunal and they upheld the decision of the Industrial Tribunal as regards that the claim was based on the infringement of the Sex Discrimination Act 1975, since section 6(4) of that Act permits discrimination on the grounds of sex where it arises out of 'provision in relation to retirement but in relation to the second question, the Employment Tribunal set aside the question of whether the dismissal violated the principle of equality of treatment laid down by Directive 76/207, because although it did violate directive 76/207, the Employment Appeals Tribunal said that an individual could not rely on an infringement of a directive before a United Kingdom Court or Tribunal....
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