Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STAUGHTON |
| Judgment Date | 31 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0731-11 |
| Docket Number | 90/0733 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1990 |
[1990] EWCA Civ J0731-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Butler-Sloss
and
Lord Justice Staughton
90/0733
The Appellant (Applicant) appeared in person.
MR. ANDREW LYDIARD (instructed by Messrs Le Brasseur & Monier Williams) appeared on behalf of the Respondent (Respondent).
MR. DAVID PANNICK (instructed by the Treasury Solicitor) appeared on behalf of the Amicus Curiae.
This appeal, from a decision of the Employment Appeal Tribunal (Wood J.) given on 18th September 1989, raises an issue in relation to European Community law which I have not found at all easy, despite the very helpful submissions of Mr. Lydiard for the respondents and of Mr. Pannick as amicus curiae and the detailed and scholarly skeleton argument lodged by the appellant, Miss Marshall, herself.
The facts are simple.
Miss Marshall was employed by the respondents, the Southampton and South-West Hampshire Health Authority, as a senior dietician. She was dismissed at the age of 62 because she was a woman; had she been a man her employment would have continued at least until she attained 65.
She therefore claimed that she had been the victim of unlawful discrimination—sex discrimination—under the Sex Discrimination Act 1975 ("the Act") and she made an application to an Industrial Tribunal, the appropriate tribunal under the Act, for compensation.
Section 6 of the Act provides by subsection (2) that:
"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her…
(b) by dismissing her or subjecting her to any other detriment."
That is, however, on the face of the Act, qualified by subsection (4) of section 6 which provides that subsection (2) does not apply to provision in relation to death or retirement.
To overcome this, Miss Marshall relied on European Community Law and in particular on the Equal Treatment Directive of the European Community, Directive 76/207 made in the year 1976 which provides by Articles 5 and 6 as follows:
"ARTICLE 5
(1) 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.
(2) 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.
ARTICLE 6
Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.!
The European Court held that there had been discrimination against Miss Marshall contrary to the Directive and that she was entitled to pursue her claim for compensation in the national tribunal despite subsection (4) of section 6. The decision of the European Court is reported at [1986] Q.B. 401, and I shall have to come back to the reasoning later.
This court, which had directed the reference to the European Court, therefore referred her claim back to the Industrial Tribunal to assess her compensation.
The relevant provision of the Act laying down the remedies for unlawful discrimination is section 65 which in its amended form relevant to Miss Marshall's case provides as follows:
"65 Remedies on complaint under section 63
(1) Where an industrial tribunal finds that a complaint presented to it under section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable—
(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 66;
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.
(2) The amount of compensation awarded to a person under subsection (l) (b) shall not exceed the [limit for the time being imposed by] [section 75 of the Employment Protection (Consolidation) Act 1978.
(3) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by an industrial tribunal under subsection (l) (c), then, if they think it just and equitable to do so
(a) the tribunal may (subject to the limit in subsection (2)) increase the amount of compensation required to be paid to the complainant in respect of the complaint by an order made under subsection (l) (b), or
(b) if an order under subsection (l) (b) could have been made but was not, the tribunal may make such an order."
The limit under subsection (2) on the amount of compensation which could be awarded was, at the time relevant for Miss Marshall's case, £6,250.
Section 66 of the Act, which is referred to in section 65(l) (b), provides that a claim by any person that another person has committed an act of discrimination against the claimant which is unlawful by virtue of Part III of the Act—which does not include section 6—may be made the subject of civil proceedings in like manner as any other claim in tort. Subsection (2) of section 66 then provides that such proceedings shall be brought only in a county court but that all such remedies shall be obtainable in such proceedings as would be obtainable in the High Court.
In Miss Marshall's case the respondents paid her the statutory maximum compensation of £6,250 before her claim came on for further hearing in the Industrial Court, after being referred back by this Court, but she pursued her claim. The Industrial Court held itself entitled and bound to apply the provisions of European law so as to award Miss Marshall adequate compensation. The relevant passage stipulating the obligation under European law is in paragraph 28 of the decision of the European Court in Von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891 at 1909 viz:
"…if a Member State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained…".
See also paragraph 23 of the same judgment where the same wording is used and the Ruling 3 of the Court in that case.
The Industrial Tribunal therefore assessed Miss Marshall's loss at £19,405 and awarded her that sum less the £6250 which she had already received. The £19,405 included £7710 interest, computed as the just and equitable way of dealing with the fact that Miss Marshall had lost income through not receiving her award earlier.
The respondents paid, without appealing, the balance of the capital sum awarded, but they appealed against the inclusion in the award of the £7701 interest. That appeal was allowed by the Employment Appeal Tribunal and the award was reduced accordingly. It is against that decision of the Employment Appeal Tribunal that Miss Marshall now appeals to this court.
Although, however, the appeal is only over the award of £7701 interest, and the primary question is therefore as to the power of the Industrial Tribunal to award interest in the special circumstances of this case, the validity qua Miss Marshall of the limit of section 65(2) of the Act is also in issue. This is so, partly because it is an obvious point to consider in testing how far, if at all, European law can be directly applied against the respondents on this aspect of the case but even more because if section 65(2) is valid as against Miss Marshall it is a complete answer to her claim to interest; she had had the maximum of £6250 and can have no more. We therefore gave the respondents leave to rely on subsection 65(2) although the point had not been taken in a respondent's notice.
The starting point for considering the effect in the national courts of any EC Directive must be Article 189 of the Treaty of Rome, which provides that:
"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
Thus Articles 5 and 6 of Directive 76/207...
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