Marshall v Southampton Health Authority
Marshall v Southampton and South West Hampshire Area Health Authority (1986) Case 152/84 is an EU law case, concerning the conflict of law between a national legal system and European Union law. Facts. Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. She was an employee of an Area Health Authority (or "AHA"), a body established by the UK government under the National Health Service Act 1977, as amended by the Health Services Act 1980. Marshall was dismissed after 14 years on 31 March  1980, approximately four weeks after attaining the age of 62, despite her expressing a willingness to continue in employment until the age of 65 (4 February 1983). The sole reason for her dismissal was that she had passed 'the retirement age'; the AHA's policy was to make women compulsorily retire at 60, but men at 65. Section 27 (1) and 28 (1) of the Social Security Act 1975 provided state pensions were to be granted to men at 65 and woman at 60, though notably did not impose any obligation to retire at the age at which the state  pension becomes payable. The AHA were able to waive the term, which was deemed an implied term of Marshall's contract of employment and had done so for a further two years after she attained the age of 60. Given Marshall suffered financial loss, namely the difference between her earnings as an employee and her pension, and since she lost the satisfaction gained from work she initiated proceedings before an industrial tribunal, contending her dismissal constituted discriminatory treatment on the ground of sex, contrary to the sexual discrimination act and community law. The tribunal dismissed the claim in so far  as it was based on infringement of the sexual discrimination act, since s 6 (4) permits discrimination of the grounds of sex in regards to retirement. However the claim on the basis that the principle of equal treatment laid down by directive 76/207 was upheld. The employment appeal tribunal affirmed the industrial tribunal on the first point, yet set aside the decision on the second point, on the basis that an individual had no "locus standi" and could not rely upon such a violation in proceedings before a United Kingdom court or tribunal. The English Court of Appeal found the  Area Health Authority an ‘emanation of the State’, observing that the AHA respondent was constituted under s.8(1) of the National Health Service Act 1977. The Court made reference of two questions for preliminary ruling to the European Court of Justice (ECJ): Judgment. Advocate General Opinion. Advocate General Slynn argued the ‘state’ should be construed broadly, to cover all organs, saying that insinuating ‘horizontal effect’ into directives would ‘totally blur the distinction between EU directives and regulations'. Court of Justice. The ECJ, in a full court of 13 judges, held there was no horizontal direct effect. It does not matter what  capacity a state is acting. Thus it fell to enquire whether the NHS should be deemed an "independent legal person" or an "arm of the state"; and that was a matter for the national court. English Court of Appeal. This case involved an application for a preliminary ruling. Once the ECJ had answered the question, their decision was remitted to the reconvened Court of Appeal (which in the interim had adjourned this case). The Court of Appeal was then obliged to reach a decision in the light of the ECJ ruling.