CASE LAW: Case C-271/91, M.H. Marshall v. Southampton and South West Hampshire Area Health Authority, August 2, 1993. Effectiveness; Compensation for Damages; Direct Effect of Directives

1 Colum. J. Eur. L. 110 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

Ms. Marshall was employed by the Southampton and South West Hampshire Area Health Authority (“the Authority”) as a dietician. In 1980, she was dismissed for the sole reason that she had passed the qualifying age for the British State pension. That age being different for men (65) than for women (60), Marshall argued that British law – and consequently the dismissal – was contrary to the Community directive on equal treatment of men and women with regard to working conditions. In 1986, Ms. Marshall’s view prevailed in this contention before the Court of Justice (Marshall 1).

Marshall II is the result of Ms. Marshall’s quest for effective compensation for the damage caused by the wrongful dismissal. On this remedial point as well, British law was argued to be incompatible with the same Community directive. Article 6 of the directive requires that the Member States provide a remedy before the national judiciary. The judicial remedy provided by British legislation was compensation in damages to all persons suffering unlawful discrimination, subject to an upper limit of 6250 £. Marshall’s claim for compensation was first heard in the Industrial Tribunal, which assessed a total of 19405 £ for her financial loss and injury to feelings. The Tribunal awarded this amount in the view that observing the upper limit of 6250 £ would cause the compensation to be so inadequate as to violate Article 6 of the directive. The Authority successfully appealed against this decision and Ms. Marshall in turn brought the case before the House of Lords.

The House of Lords properly referred this difficult question to the Court of Justice. It asked the Court whether, in a situation where monetary compensation is the only judicial remedy provided for by national legislation, a ceiling of 6250 £ in compensation should be deemed incompatible with Article 6 of the directive. The House of Lords further asked if a correct implementation of Article 6 instead required payment of the entire injury, plus payment of interest, for the time elapsed between the discriminatory act and the payment of compensation. Finally, the House of Lords wanted to know to what extent Article 6 should be considered to have direct effect.