Notes of Cases
| Date | 01 July 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01701.x |
| Published date | 01 July 1986 |
NOTES
OF
CASES
EQUAL
TREATMENT
AND
RETIREMENT AGE
LAST
year an article in this review
(48
M.L.R.
373)
considered the
likely impact of the equal treatment directive (Council Directive
761207)
on retirement and pensions.’ In February this year, the
European Court
of
Justice gave its judgment in three cases, all
concerned with the effect of Article
5(1)
of that directive on
disparities in retirement age.2 The case
of
Marshall
v.
Southampton
and South West Hampshire Area Health Authority3
has attracted, in
this country, more publicity than the other two cases, not least
because it has led to the promise of legi~lation.~ From a lawyer’s
point of view it might be said to be the most interesting of the
cases. It not only deals with the relationship between retirement
age and dismissal, as did the other cases. It also deals with the
question of direct effect of Article
5(1)
of the equal treatment
directive, a question raised, but never decided, many times bef~re.~
Miss
Marshall had worked as a senior dietician for the last
12
years of her
16
years’ employment with the Area Health Authority
when she was dismissed in
1980.
Although under her contract of
employment the normal retiring age for women was
60,
her
employer could waive that retirement date in individual cases,
allowing employees to continue working up to the male retirement
age of
65.
Miss Marshall was allowed to work beyond her sixtieth
birthday in
1978.
When she was dismissed, aged
62,
the only
reason given was that she was a woman over retirement age.
Deprived
of
a right to claim unfair dismissal by section
64(l)(b)
of
the Employment Protection (Consolidation) Act
1978,
Miss Marshall
brought her own case to an industrial tribunal on the grounds of
sex discrimination. The tribunal took as a preliminary point, the
question whether the action of the Health Authority was lawful.
The tribunal accepted that the action was not unlawful under the
terms of the Sex Discrimination Act
1975,
since it fell within the
exemption provided by section
6(4),
arising out of a “provision
related to retirement.” However, the tribunal accepted that the
dismissal violated the principle of equal treatment under Council
V.
Shrubsall, “Sex Discrimination: Retirement and Pensions” (1985)
48
M.L.R. 373.
Case 151/84,
Joan Roberts
v.
Tate
&
Lyle Industries Ltd.
[1986] I.R.L.R. 150; Case
152l84,
Miss M. H. Marshall
v.
Southampton and South-West Hampshire Area Health
Author@ (Teaching)
[1986]
2
W.L.R. 780; Case 262/84,
Mrs. Vera M. Beets-Proper
v.
Van Lanschot Bankiers
N.
V.
(unreported); judgments delivered on February
26,
1986.
Case 152/84.
On April
1,
1986, the Department
of
Employment published a consultative document,
“Sex Discrimination and Retirement”, in which the Government proposed amendments
to the Sex Discrimination Bill, then before Parliament, to extend the
Marshall
decision
to
all employees.
e.g.
Burton
v.
British Railways Board
[1982] I.C.R. 329;
Garland
v.
British Rail
Engineering Ltd.
(19821 I.C.R. 420;
Worringham
v.
Lloyds Bank ttd.
(19811 I.C.R. 558;
Defrenne
v.
Sabena
[1978] E.C.R. 1365.
508
JULY
19861
NOTES
OF
CASES
509
Directive
76/207,
which it held to be directly enforceable in the
national courts and tribunals.
On appeal, the E.A.T. were not prepared to accept without
clearer authority than that which existed at the time, that the
directive could be relied upon directly in the national courts and
dismissed her case. On her appeal, the Court of Appeal referred
the case to the European Court
of
Justice to decide whether her
dismissal was an act
of
discrimination prohibited by the directive
and if
so,
whether she could rely upon the directive directly in
national courts and tribunals notwithstanding the inconsistency (if
any) between the directive and section
6(4)
of the Sex Discrimination
Act.
The European Court decided that the case concerned “the fixing
of an age limit with regard to the termination of employment
pursuant to a general policy concerning dismissal.”6 Article
5(1)
of
Council Directive
76/207
provided that the conditions governing
dismissal were working conditions to which the principle of equal
treatment applied. The Court reiterated its decision in
Burton
v.
British Railways Board’
that the word “dismissal” must be given a
wide meaning and reaffirmed the distinction made in that case
between complaints relating to dismissal at the upper working age
(retirement age) and complaints which centre on access to pension
benefits. In the
Burton
case employees could apply for voluntary
redundancy within
five
years of their retirement ages, which were
60
for women and
65
for men. The European Court rejected the
complaint
of
Mr. Burton, aged
58,
that he had been discriminated
against, since his complaint of discrimination depended upon
reference to pensionable age, which was outside the scope of the
equal treatment directive. Article
l(2)
excludes from the scope of
the directive equal treatment in matters of social security, which
are covered instead by Council Directive
79/7.
Article
7
of that
directive explicitly gives Member States discretion in fixing
pensionable age.
The same point arose in
Roberts
v.
Tate and Lyle:
decided at
the same time as the
Marshall
case. At Tate and Lyle, both male
and female employees could apply for early retirement at the age
of
55.
The European Court rejected Miss Roberts’ complaint that
she had been discriminated against, because her definition of
discrimination referred to differences in pensionable age, not the
leaving (retirement) age which was the same for men and women.
In the past it has been assumed that what differentiated retirement
from other ways of leaving paid employment was access to a
pension. The
Marshall
and
Roberts
cases indicate that this is
so
no
longer.
Judgment
of
the E.C.J.
at
para.
32.
Case
151/84 [1986]
I.R.L.R.
150.
’
[1982]
I.C.R.
329, 348.
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