Remedies and Effective Judicial Protection in community Law

AuthorBarry Fitzpatrick,Erika Szyszczak
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01950.x
Publication Date01 May 1994
CASES
Remedies and Effective Judicial Protection in
Community Law
Barry
Htzpatrick*
and
Erika
Szyszczak**
One has to admire the tenacity of Miss Marshall. Some thirteen years after an
Industrial Tribunal took
an
imaginative and bold decision, declaring that Article
5(1) of the Equal Treatment Directive (ETD)’ was capable of creating direct
effect between the applicant and her employer, Miss Marshall is still battling to
receive adequate compensation for her discriminatory dismissal.
Following the judgment of the Court of Justice,2 confirming the Industrial
Tribunal’s decision, the Court of Appeal remitted the case back to the Industrial
Tribunal in order to determine the amount of compensation. The employers had
paid Miss Marshall the
maximum
amount of compensation under section 65(2) of
the Sex Discrimination Act 1975 (SDA)
-
a sum of f6,250.3 The Industrial
Tribunal awarded Miss Marshall a much higher sum off 19,405, including f7,710
interest and
f
1
,OOO
in respect of injury to feelings. The employer paid a further
fS,445
and appealed against the award of f7,710 in respect of interest. The appeal
was upheld by the Employment Appeal Tribunal. Representing herself, Miss
Marshall was unsuccessful before the Court of Appeal: where it was held that
she was not entitled to rely upon Article 6 ETDs as having direct effect in order
to set aside the upper limit on the amount of compensation laid down by section 65
SDA 1975. On appeal to the House of Lords,
three
questions were referred to the
Court of Justice under Article 177 EC. These concerned the legality of the upper
limit for compensation, the extent of compensation required, including interest,
and the direct effect of Article 6 ETD.
The intervening period between the initial Industrial Tribunal ruling and the
Marshall
(No
2)
ruling, while frustrating in terms of individual redress, was
beneficial in jurisprudential terms. During that time, the Court developed a strong
theme of effective judicial protection, taking the reach of EC law into the
*Newcastle Law School, University of Newcastle upon Tyne.
1 Council Directive 76/207/EEC
OJ
L 39/76. Article
5
states: ‘Application of the principle of
equal
treatment with regard
to
working conditions, including
the
conditions governing dismissal, meam that
men and women
shall
be
guaranteed
the same conditions without discrimination
on
grounds of
sex.’
2 Case 152/84,
Marshall
v
Southumpton and
SW
Hampshire Area Health Authorify (Teaching)
[1986]
ECR 723.
3
s
65(1)
of
the SDA 1975
stated
that an Industrial Tribunal could make
an
order requiring compensation
to be paid where it found a complaint relating to sex discrimination
in
employment well-founded.
Under
s
65(2) the amount of such compensation could not exceed a specified limit.
S
65(2)
has
been
repealed by the Sex Discrimination and Equal Pay (Remedies) Regulations 1993,
SI
1993 No 2798,
which came into effect on 22 November 1993.
4 [1990] IRLR 481.
5
Article 6 states: ‘Member States shall introduce
into
their national legal system 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.’
**Law Department, London School of Economics.
0
The Modem Law Review Limited
1994
(MLR 57:3, May). Published by
Blackwell
Publishers,
I08 Cowley
Road,
Oxford
OX4 1JF
and 238
Main
Street,
Cambridge,
MA
02142,
USA.
434

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