Remedies and Effective Judicial Protection in community Law

Abstract

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 o f f 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