1. Introduction
On International Women’s Day in 2021, the European Court of Justice (ECJ) posted the following on Twitter (now X): ‘On this International Women’s Day we remember Helen Marshall – a dietitian whose tenacity before the ECJ led to a landmark judgement on Gender Equality 35 years ago’.Footnote 1 The endorsement reflects a legal point of view in which the case of Helen Marshall has become an integral part of European law.Footnote 2 Yet while this assessment may be perfectly adequate for academic jurists, for historians of law, this case offers an opportunity to deepen and expand upon the conversation about the concept of ‘history from below’ on the one hand, and to connect it with the history of European law on the other, thus developing an original history of European law ‘from below’.
The concept of the ‘history from below’ was introduced by historians in the 1950s with the aim ‘to take as its subjects ordinary people, and concentrate[s] on their experiences and perspectives, contrasting itself with the stereotype of traditional political history and its focus on the actions of “great men”’.Footnote 3 Historians committed to this approach have focused on the development of the working class and subaltern groups, to name but a few examples. Their intention has been to challenge conventional ways of history writing and to empower groups of people who have been marginalised not only by academics but also by politicians.Footnote 4
In the 1990s, sociologists and legal scholars started studying law ‘from below’. In their seminal work, sociologists Patricia Ewick and Susan S. Silbey argue that law plays out in the life of ordinary people and that it develops through lived experience thereby contributing to the evolution of legal consciousness.Footnote 5 In recent years, legal scholarship has focussed on the law ‘from below’ by examining the role of individuals and civil society as protectors of the rule of law in times of political crisis,Footnote 6 as well as the role of social movements in shaping the relationship between the Global South and international law, among others.Footnote 7
Research of the 1980s on the role of law in European integration, a field dominated by legal scholars, understood the law as apolitical and jurists acting under it as merely applying the law, without any political agenda of their own.Footnote 8 Over the last four decades, however, this field has been influenced by a number of disciplines. Political scientists have extended the set of actors, for example, by analysing the role of interest groups in mobilising different areas of European law at the ECJ to press for amendments to national legislation,Footnote 9 and by investigating the role lawyers played in the construction of European law at national courts and in Brussels.Footnote 10 Legal scholars have put more emphasis on individual plaintiffs and their strategies at the ECJ,Footnote 11 and legal sociologists have drawn on Pierre Bourdieu to examine the social field of lawyers and their contribution to the emergence of European law.Footnote 12 Furthermore, social scientists have investigated European law ‘from below’ in light of the developments in European citizenship and its associated social rights.Footnote 13
For their own part, historians have only entered this field in the last decade, studying the establishment of transnational networks of jurists,Footnote 14 and the European Commission’s Legal Service impact on the ECJ.Footnote 15 One string of recent research looks at lawyers who opposed European integration,Footnote 16 and another one puts emphasis on the key role of lawyers in the creation of a ‘social Europe’. This latter research reaches the conclusion that, while they were too distinct to form a collective, European lawyers were united in their strong motivation to change discriminatory national legislation by bringing cases to the ECJ. Over time, many of these lawyers developed a sense of their contribution to a ‘social Europe’.Footnote 17
While the different disciplinary debates deal with similar empirical subjects and occasionally overlap, they rarely engage with each other in any great detail. It is here that Helen Marshall’s individual role as an advocate for social and legal change proves useful to a cross-disciplinary inquiry. Using Marshall as historical agent and as a ‘heuristic tool’, the article argues that Marshall was a ‘legal entrepreneur’Footnote 18 in her own cause, while at the same time her choices reflected the British zeitgeist through the medium of European law. The Marshall cases demonstrate that the legal construction of the Community was by no means solely a project driven by and for elites but could - and, at times, did- have a distinctly popular dynamic.Footnote 19 The article further nuances the notion of Britain, ie, a national collective, as an ‘awkward partner’Footnote 20 by highlighting that Helen Marshall, a British citizen, actively contributed to European integration, although necessarily within a larger complex of other actors.
Based on original research that encompasses a wide range of national, regional, and local newspaper articles, law journals, published judgements by the ECJ and the opinions of the advocates general who served on it, documents of the Equal Opportunities Commission (EOC) held at the National Archives in London, as well as documents of the Commission’s Legal Service available at the Historical Archives of the European Commission in Brussels, this article is structured in five short sections. It traces Helen Marshall’s legal journey from 1978, when Marshall had reached the retirement age for women, to 1993, when the ECJ finally ruled on her case. The sections are structured both thematically and chronologically to make a claim of how to approach a landmark case in the history of European law ‘from below’.
2. Impaired by the law or aging in 1970s Southampton
Margaret Helen Marshall was born in 1918 and was a resident of Southampton where she had worked as a senior dietitian for the Southampton and Southwest Hampshire Area Health Authority since 1966.Footnote 21 Since the early 20th century, Southampton had been a major port city, from where (in)famous cruise liners – such as the Titanic – set sail for the world. Due to its economic and strategic importance, Southampton suffered heavy air raids from Nazi Germany in 1940. Cruise shipping remained important until the 1970s and has since seen a revival, but during the 1980s Southampton’s shipping industry was in decline, mirroring the situation in the United Kingdom (UK) as a whole.Footnote 22 As a result, in the decades that followed, the local press described Southampton as having ‘an air of missed opportunities’ and like ‘a cross between a university campus and a retail park’.Footnote 23 During the 1980s, the public sector was the main employer, with the National Health Service (NHS) employing about 6,500 people, many of whom were women. In demographic terms, then, Southampton was a city of the elderly.Footnote 24
As such Southampton was representative of a much larger, secular trend. Throughout the 20th century, life expectancy increased and old age, as a phase of life that lasted longer than before, accordingly became a catalyst for the development of the welfare state.Footnote 25 This development of the welfare state intersected with gender and class, with women being reduced to poverty in old age because they were on average not covered sustainably by pensions.Footnote 26 Furthermore, the perception of old age changed over the course of the 20th century with an growing demand by women to work longer.Footnote 27
Helen Marshall was one of many older people who no longer believed that ageing should prevent them from working: By 1978, Marshall had reached the state retirement age for women, which was 60 at the time. However, she persuaded her employer to allow her to continue working. Two years later, however, her employer made her redundant, citing her age as the reason. Like her male colleagues, whose state retirement age was 65, Marshall had planned to work for three more years.Footnote 28 The discrepancy between state retirement age at the time dated back to the Old Age Pension Act 1940, when legislators sought to reflect the five-year age difference between men and women in the statistically typical British couple.Footnote 29 This had been introduced with the idea that men and women could ‘go hand in hand into that sunset’ of retirement, as one newspaper columnist sardonically wrote in the mid-1980s.Footnote 30 Attitudes were changing, and while Marshall may have wished for a sunset on her own terms, she did not need to hold someone’s hand to do so. On the contrary, for Marshall, the end of her working life presented a two-fold problem: financially, her pension was significantly less than her salary. Emotionally, she felt that her job had been taken away from her and with it ‘the satisfaction which she derived from her employment’, as the ECJ would later interpret the motivation behind her complaint.Footnote 31
Marshall’s wish to continue working needs to be seen in the context of the heated debate that raged in Britain during the mid-1960s over the equalisation of the state retirement age in Britain, and the interlinked developments in European law. Throughout the 1960s, second-wave feminism, British governments, trade unions, as well as the Confederation of British Industry (CBI) negotiated for equal pay and equal state retirement ages for men and women.Footnote 32 Women sewing machinists went on strike for equal pay at the Ford Dagenham plant in East London in 1968.Footnote 33 Following a lengthy political confrontation between trade unions, the CBI, the women’s movement, and the Labour government, the Equal Pay Act (1970) as well as the Sex Discrimination Act (1975) were introduced.Footnote 34 However, as several court proceedings in Britain and at the ECJ in Luxembourg would soon prove, these two laws were not in line with European law. For example, they contradicted the principle of equal pay (Article 119), which had been introduced in the Treaty of Rome of 1957 to guarantee equal pay for equal work between men and women as well as the Equal Treatment Directive of 1976, which had been established to level out differences in national legislation and to combat discrimination against women in the labour market. Although Member States were obliged to guarantee equal treatment in terms of pay, there were few serious legislative attempts to implement the principle of equal pay due to the different national welfare state systems and fears of an incalculable rise in labour costs.Footnote 35 Britain was no exception, as Marshall’s case showed.
3. Know your rights or equal opportunities and the British culture of citizen’s advice
Marshall was not one to give up easily, though. She sought assistance from the Manchester-based EOC to challenge her forced retirement. The EOC was set up under the 1975 Sex Discrimination Act to support the legal enforcement of equal pay. It was responsible for tackling discrimination and promoting gender equality. The EOC and its cause were the subject of considerable press attention and controversy and must have been very much on the minds of interested readers.Footnote 36
The rise of the equal opportunities’ agenda must also be seen in the wider context of the growing culture of legal aid in the UK. Like many other democratic countries, the UK government had introduced a publicly supported system of legal aid that developed alongside the welfare state in the mid-20th century.Footnote 37 The Citizens Advice Bureau, set up in 1939 to provide legal, housing and consumer advice in newly established community law centres, the global Access to Justice movement and the Law Centre movement of the 1970s all contributed to this culture.Footnote 38 In the UK of the 1970s and 1980s, help with legal fees and legal know-how were readily available, in what has been called ‘the golden period in the history of legal aid’.Footnote 39
This expansion of legal aid coincided with the British labour law reforms of the 1960s. Following a series of strikes in the UK that began in the late 1960s, the Industrial Relations Act of 1971 was enacted to defuse the drama of the conflict-ridden relationship between employers’ organisations and trade unions. Three years later, industrial tribunals were set up to take labour-related conflicts away from the bargaining table and into the courts, composed of a trained judge, a member of the trade union, and a member of the CBI.Footnote 40 As archival documentation shows, when Marshall took her case to the Southampton Industrial Tribunal, the EOC’s Legal Section provided advice on both British and European law in August 1980. However, the EOC did not send a solicitor to the hearings on her behalf.Footnote 41 Apparently, the Legal Section did not consider Marshall’s case successful for the EOC’s cause. Since its establishment, the EOC Commissioners had identified European law as part of litigation.Footnote 42 Of the 43 equal pay and equal treatment cases brought before the ECJ between 1970 and 1990, no less than 14 were from the UK and all were supported by the EOC.Footnote 43 Surprisingly, though, the EOC did not appear not to have an overall litigation strategy.Footnote 44
Despite the rejection by the EOC, Marshall was undeterred. She decided to represent herself at the Industrial Tribunal when her case came up later that year. Reading up on the materials she had been given, yet with no solicitor to counsel her on the intricacies of labour and pensions law, she argued that section 6 number 4 of the 1975 Sex Discrimination Act was in breach of the principle of equal pay and the Equal Treatment Directive because it allowed discrimination on the grounds of sex regarding retirement.Footnote 45 Inaccuracies and misunderstandings are inevitable when a lay person ventures into dogmatic territory: Marshall stated incorrectly that the principle of equal pay and the Equal Treatment Directive were interconnected – which they were morally and politically, but not legally. In fact, as the Industrial Tribunal would correct her, Marshall’s problem was one of equal treatment but not of equal pay, a crucial difference in terms of the hierarchical status of the pertinent legislation: while the latter was a quasi-constitutional treaty matter, the former was based on a – lower-ranking – directive.Footnote 46
However, while Marshall’s legal arguments were not perfect, her performance was impressive. The local judges described Marshall as ‘a well educated lady and as one would expect from her qualifications’ and ‘one who is capable of logical and clear thought and was able to put her case to us so succinctly’.Footnote 47 Furthermore, the substance of her case appeared sound to the Industrial Tribunal, which shared Marshall’s concerns about the unequal treatment of women and men with regard to retirement age. After referring to past judgements by the ECJ, as well as the 1978 Court of Appeal’s E Coomes v Shields’ decision in which Lord Denning, Master of the Rolls, had emphasised the binding nature of directives in certain circumstances, the Industrial Tribunal produced a decision in September 1980: Marshall could indeed make a valid claim on the grounds of Article 5, paragraph 1 of the Equal Treatment Directive which guaranteed equal treatment in terms of dismissal since the Directive was ‘clear and precise’ and ‘unconditional’ as was the prerogative for directives.Footnote 48
The Health Authority appealed against the Industrial Tribunal’s decision to the Employment Appeal Tribunal in London. With the legal stakes thus raised, Marshall applied for legal assistance at the EOC for a second time. Once more, the Legal Committee of the EOC deliberated whether or not Marshall’s case was worth supporting. Given her evident fighting spirit, it was certain that she would pursue her lawsuit in any case, first at the Employment Appeal Tribunal and, possibly, all the way to the ECJ. And despite acknowledging Marshall’s valiant efforts, the EOC lawyers now felt that the complexity of the issue at hand demanded more legal expertise to avoid any unwelcome repercussions that could result from an ECJ decision and its potentially far-reaching implications for employment law. Therefore, in July 1981, the EOC’s Legal Committee granted her assistance for advice and drafting of relevant documents by a solicitor and a counsel for the appeal at the Employment Appeal Tribunal; yet the Legal Committee did not grant legal representation in court yet.Footnote 49 Put less kindly, the EOC’s lawyers were afraid that the determined amateur might do more harm than good if she went on without professional guidance.
4. Direct effect or the British pension debate at the ECJ
There were also larger policy issues which motivated the ECO’s decision in Marshall’s favour. Against the backdrop of the double threat of high unemployment and inflation in the 1970s, the Labour governments of the 1960s and 1970s reinvigorated the debate on equal pay. This political debate would eventually lead to the 1975 Social Security Pensions Act and the introduction of the State Earnings-Related Pension Scheme three years later to safeguard occupational pension schemes that were widespread among British employees.Footnote 50
At the time, the issue of the equalisation of retirement ages for men and women was being discussed with renewed vigour in parliament. In this debate, the EOC sought to make its mark, publishing reports on the pension system and advising the government and parliament on how to make it more equitable. Public surveys conducted by the EOC concluded that the majority of the British public were in favour of reducing the pension age of male employees to 63. However, EOC’s preferred policy was to introduce flexible retirement ages across the board as a first step. This would be followed by addressing equalisation in the individual industries and professions, with a retirement age of 63 for all employees as a possible but not firmly held option.Footnote 51 Marshall was one of many women employed in the Health Services who were dissatisfied with the disparity in retirement ages, which made her case particularly relevant to the equalisation debate.Footnote 52 In addition to Marshall’s solo effort to pursuing her case and the resulting fears by the EOC of potential damages to legal developments, it was against this backdrop that the EOC had decided to become actively involved in Marshall’s case, granting her assistance in the proceedings at the Employment Appeal Tribunal by entrusting the solicitor Stephen Grosz of Bindman & Partners to conduct the case in July 1981.Footnote 53
Grosz had studied law at Clare College, Cambridge, and after his graduation in 1974 he had taken a master’s degree in European law at the University of Brussels.Footnote 54 When he joined Bindman & Partners in 1981, he was a young and ambitious lawyer who was making a name for himself as a human rights lawyer when representing the European Commission of Human Rights as solicitor in the proceedings Silver and Others v UK before the European Court of Human Rights in Strasbourg.Footnote 55 As barrister to present Marshall in court, the choice fell on Michael Beloff. In 1967, he had been called to the Bar (Gray’s Inn) and had taken silk in 1981.Footnote 56 As counsel, Beloff was acting on behalf of the European Human Rights Commission in the Silver and Others v UK case, alongside Grosz.Footnote 57
The EOC’s regular counsel, Anthony Lester – who had been involved in the first British equal pay cases before the ECJ and who had also been part of the European Commission of Human Rights’ legal team in the Silver and Others v UK case –, had advised against Marshall’s case to be pursued by the EOC.Footnote 58 Still, Marshall’s case remained to be of no priority to the EOC, when Beloff took over the job as counsel as he recommended putting Marshall’s case on hold for strategic reasons rather than listing it with the Employment Appeal Tribunal in 1981. He suggested awaiting the outcome of three other cases that were pending at the ECJ – the joint cases of Susan Jane Worringham and Margaret Humphreys as well as those of Arthur Burton and Eileen Garland respectively.Footnote 59 The Worringham and Humphreys case concerned the contracted-out pension benefit schemes of Lloyd’s Bank and the question of equal pay. This case Beloff knew particularly well since the Commission’s Legal Service had hired him as a legal agent, alongside Amando Toledano Laredo.Footnote 60 The Burton and Garland cases concerned not the retirement age (the age at which the employee was required to leave the present job or to cease any kind of employment) but the difference in the pensionable age (the age state pension could be claimed) of men and women, with regard to the voluntary redundancy scheme of British Railways and equal treatment of men and women.Footnote 61
Central to Marshall’s case, and the source of Beloff’s hesitation, was the long-standing, heated debate over the doctrine of direct effect. While European regulations were directly applicable according to the Treaty of Rome, directives – such as the Equal Treatment Directive – had to be implemented by national legislators.Footnote 62 The ‘choice of form and methods’ for implementing the respective directive were left to the Member States.Footnote 63 The European Commission had played an especially active part in promoting the direct effect of directives to strengthen the application of European law from the early 1960s throughout the 1970s; much to the dismay of the national governments that feared a loss in competences.Footnote 64 In the 1974 Van Duyn case, the lawyers representing Yvonne van Duyn had argued that individuals were entitled to claim Directive 64/221 in specific situations, namely when the provisions were clear and unconditional. However, the British Parliament rejected the ECJ’s decision on grounds that it would blur the lines between directly applicable regulations and directives, which could not be applied directly.Footnote 65 Thus, in the late 1970s/early 1980s, the rejection led both the Legal Service and the ECJ to compromise on the direct applicability of directives, in an attempt to stave off mounting opposition from Member States as well as national courts.Footnote 66
In the Marshall case, the pressing issue was whether individuals would be able to invoke European law in national courts, even though a directive had not yet been implemented into national law. In 1982, when Marshall’s case was put on the agenda of the EOC, the issue of direct effect in relation to equal treatment had not yet been decided by the ECJ.Footnote 67 Also, Marshall’s case concerned the state retirement age, which was part of the national social security system and, under the Treaty of Rome, outside the remit of Community law. For Beloff, it therefore seemed preferable to hope that meaningful precedents would emerge from the decisions of the outstanding cases so as to reduce the uncertainties of Marshall’s case. Meanwhile, the ECJ had ruled in Worringham and Humphreys as well as in Burton. While in the former case, the ECJ decided that the different retirement ages between women and men in relation to the contracted-out pension benefit schemes fell under the principle of equal pay, in the latter case, the ECJ found that the pensionable age gap between men and women in this voluntary scheme was not in breach of the Directive.Footnote 68
Although not all these cases were closely related in their legal substance, rushing Marshall’s complaint, as Beloff told the EOC, could prove to be a tricky business: In his view, it would be prudent to wait for developments in the EOC-supported case of Ethel Alice Marjorie Duke, a private-sector employee who also felt discriminated against by the earlier retirement age for women.Footnote 69 Beloff’s recommendation to delay the proceedings was generally in line with the way the EOC was operating in the face of limited funding and severe understaffing. It was prepared to cover all procedural costs, but it would only support court cases that it was confident could be won and that would contribute to a substantial development of law.Footnote 70 The financial burden of litigation was becoming increasingly problematic for the EOC, which was struggling with its budget.Footnote 71 Therefore, the EOC granted Marshall assistance for representation by Grosz and Beloff at the Employment Appeal Tribunal but followed Beloff in his advice to wait for the outcome of the other pending cases.Footnote 72
In addition to the financial worries, the potential legal repercussions that Marshall’s persistence might cause were of increasing concern to the members of the Legal Committee. In internal communications discussing Marshall’s motivations in pursuing her case, it expressed its concern that it was ‘one of her great interests in life’ and that she did not ‘see her case a weak one’.Footnote 73 The Legal Committee added that Marshall pursuing a different course of action might conflict with the EOC’s strategy of creating legal certainty in the area of equal opportunities.Footnote 74 Furthermore, Marshall’s pressing for her case would ‘not necessarily be the most advantageous step from the point of view of the Commission’s overall strategy in relation to European law’.Footnote 75
Marshall, being unaware of these various concerns, was ‘most disturbed’ by the EOC’s cautious, wait-and-see strategy.Footnote 76 She did not understand why her case, two years after she had appeared before the Industrial Tribunal, was still in the queue for listing at the Employment Appeal Tribunal; Marshall had already made enquiries to the Employment Appeal Tribunal about the delay.Footnote 77 Thus, in June 1982, she formally requested her case to be listed before the outcome of the Duke case was known.Footnote 78 Thinking ahead to possible future proceedings at the ECJ, she suggested to the EOC that they should no longer frame her case in the context of pensions, but rather focus on ‘employment discrimination’, as the ECJ had recently given priority to the ‘consequence on the economic implications to the pension funds and to the state than on the injustice or the discrimination suffered by the employee’.Footnote 79 At the same time, Marshall was aware that she lacked legal knowledge and that she was in need of legal advice.Footnote 80
When Marshall’s case was finally heard and decided in February 1983, the result proved disappointing, as the Employment Appeal Tribunal ruled against her. The judges decided that directives were not applicable before national courts but subject to implementation in national legislation.Footnote 81 This decision seemed generally in line with British courts’ lack of support for arguments based on European law. Especially, the Employment Appeal Tribunal had referred to Community law only in about two handfuls of sex discrimination related cases until 1986.Footnote 82 However, the judges acknowledged that if either the House of Lords or the ECJ decided at some point that directives were binding on national courts, the lower retirement age for women were likely in breach of Article 5 of the Directive.Footnote 83 The Employment Appeal Tribunal granted Marshall permission to appeal at the Court of Appeal which hints to the legal salience of the matter and, perhaps, the judges’ sentiments towards Marshall’s individual case.Footnote 84
The legal dispute continued and every step on the way remained difficult. After having waited for years, it was now Marshall’s misfortune that her case arrived at the EOC at a time that was both propitious and difficult. Rather than being the only test case, her lawsuit was part of a minor deluge of legal challenges in the wider realm of equal opportunities. Marshall’s concern was clearly part of a larger trend, which meant that it had to compete for resources with other proceedings. In 1982, the cases of Joan Roberts and Douglas Harvey Barber had been added to the EOC’s list. Both cases addressed the issue of different retirement ages for men and women. However, the Barber case concerned equal pay, while the Roberts case, like Marshall’s, was related to the Equal Treatment Directive. Unlike Marshall’s case, however, both concerned contractual, occupational pension schemes rather than state retirement, which made them more likely to succeed at court. Therefore, the EOC granted her assistance for a solicitor and counsel to lodge her appeal at the Court of Appeal in March 1983 but left Marshall in uncertainty, again, regarding further assistance in court until further outcomes in Barber and Roberts. Footnote 85
In autumn 1983, the Legal Committee agreed on meeting Beloff to discuss whether to pursue Marshall’s case at the Court of Appeal – with a considerable chance to be referred to the ECJ. Being by now an indispensable part of this legal operation, Marshall joined the meeting in the EOC’s headquarters in Manchester.Footnote 86 According to the Legal Committee, even though the Employment Appeal Tribunal had decided against Marshall, the judges had at least acknowledged that if the Directive was directly applicable in UK courts, the different retirement ages were in breach of Article 5 of the Directive.Footnote 87 In case the ECJ would find direct effect, it might potentially follow the Employment Appeal Tribunal’s interpretation which would mean a win for Marshall. Furthermore, in the proceedings of Burton as well as Worringham and Humphreys, the parties as well as the ECJ had discussed the economic repercussion for the pension system when linking sex equality and retirement. As the Legal Committee argued, Marshall’s case, however, did not mean a burden for the pension system as such because it was about postponing the payment of her pension benefits to a later date. Therefore, the Marshall case would raise ‘an issue of general public importance’, namely, whether women could be forced to earlier retirement than men.Footnote 88
Eventually, the EOC Commissioners agreed to support Marshall at the Court of Appeal, and, in 1984, the judges vindicated Marshall’s claim vis-à-vis the EOC that her complaint had a promising European angle indeed. In its referral of the case to the ECJ, the Court of Appeal asked, first, whether the Southampton Health Authority had violated the Equal Treatment Directive by making Marshall redundant because she was over the retirement age specifically set for women. Secondly, the Court of Appeal asked whether employees such as Marshall could bring claims to the British courts under the provision of the UK Sex Discrimination Act, which excluded retirement from its general prohibition of discrimination on the grounds of sex (Section 6 number 4).Footnote 89
Upon arriving at the ECJ, Marshall’s case once again coincided with significant political events. After the first few years of more or less working harmoniously with the other Community members, the relations between Margaret Thatcher’s government and the continental Member States were showing unmistakable signs of friction, notably in the European Council negotiations over the famous budget ‘rebate’ in 1984.Footnote 90 Dissatisfaction was also growing within the European Commission over the UK’s implementation of the 1975 Equal Pay Directive, which was designed to ensure the principle of equal pay for equal work. In the early 1980s, the European Commission had filed two infringement proceedings against the UK for failing to correctly implement the Equal Pay Directive and the Equal Treatment Directive regarding collective agreements, the non-application of the Sex Discrimination Act in companies with up to five employees, and legal restrictions on men in the midwifery profession.Footnote 91
In the proceedings, the European Commission painted a bleak picture of the backwardness of British equal treatment legislation, portraying it as ‘a scene from Dickensian England rather than from the European Community of the 1980s’.Footnote 92 In its judgement of 1983, the ECJ agreed with the European Commission’s diagnosis of the UK’s inadequate implementation of equal treatment.Footnote 93 After this damning conclusion, the Legal Service expressed the hope that British legislation would soon be amended.Footnote 94 However, as the Legal Service had feared, the British parliament did not amend the Sex Discrimination Act immediately.Footnote 95
Marshall’s case would add yet another defeat at the hands of the ECJ to the by now significant number of British legal setbacks: Beloff argued before the ECJ that not being discriminated against on the grounds of sex was, in fact, a fundamental human right. As the European Court of Human Rights had stated earlier, these principles allowed for a wide interpretation by courts.Footnote 96 While the UK government did not share Marshall’s argument, the Legal Service, represented by Amando Toledano Laredo and Julian Currall, sided with Marshall, in line with a previous infringement case and other related cases.Footnote 97 The complexity of the matter became even more apparent, when, after receiving the written observations, the ECJ asked for comparative information as well as terminology by the European Commission on the different pension as well as retirement ages of women and men in the various Member States.Footnote 98 The report showed the great variety of differences across the Community.Footnote 99
In addition, Marshall received support from the Advocate General of the European Court of Justice, British lawyer Gordon Slynn, who had been appointed in 1981. Prior to this, he had held positions as judge at the High Court as well at the Employment Appeal Tribunal. At the latter, he had co-referred the EOC-supported cases of Jeanette Jenkins and Arthur Burton to the ECJ and was thereby familiar with the subject matter.Footnote 100 Slynn – as Marshall – concluded that it was indeed contrary to Article 5 paragraph 1 of the Equal Treatment Directive for Marshall to be made redundant simply because she was a woman over 60 while a man of the same age was allowed to continue working and the Directive was ‘unconditional’ and ‘sufficiently precise’.Footnote 101 In terms of the horizontal direct effect of directives, Slynn invited the court to make a decision whether individuals could invoke directives against other private parties before national courts – that had been previously a topic before the ECJ. While the Court of Appeal had interpreted the Health Authority as an ‘emanation of the state’ without further ado, Slynn complicated the matter by stating that it was up to national courts to define the meaning of state in a legal system; in Marshall’s case, the Health Authority had been described as such, as Slynn argued.Footnote 102
After eight long years of legal wrangling and delays, on 26 February 1986, Helen Marshall was finally told that her forced redundancy had been unlawful; the lower retirement age of women was in breach of the Equal Treatment Directive. In addition, the Grand Chamber of the ECJ – stressing the salience of the legal matter – showed ‘judicial responsiveness’ by stating that, in future scenarios, employees like Marshall could make their claims at national courts because the specific provision of the Equal Treatment Directive (Article 5 paragraph 1) had direct effect.Footnote 103 Following the reasoning of the Legal Service, the Advocate General, and indeed of Marshall herself, the judges opined that the directive was sufficiently precise – a precondition for direct effect – to be applied by national courts.Footnote 104 However, following Slynn, the court rejected the horizontal effect of the directive, which reflected the bow to criticisms of activism levelled at the ECJ by Member States and among (some) legal academics as well as the 1986 Single European Act to reform legislative procedures and to moderate the ECJ’s judicial powers.Footnote 105 From a constitutional point of view, the Marshall case was a defeat.
The European legal community that had followed the progress of the case intently, welcomed the ECJ’s decision on the elements of equal treatment and the application of direct effect but heavily criticised the judgement’s constitutional aspect and the court’s rejection of its horizontal effect.Footnote 106 However, this was of no concern to Helen Marshall. She had, after all, been right all along that she had been treated unfairly; only now she was past the retirement age for both men and women.
5. Public judgement or British politics and society in the making of a landmark case
Marshall’s case had attracted the attention of the British press since the early 1980s, even before the ECJ’s decision. Aware of the risk of becoming a target, Marshall had tried to maintain control of her story and so sought to minimise the amount of personal information available to the press. In her correspondence with the EOC, she made it clear that she did not want any information other than her professional background as a senior dietitian to be divulged.Footnote 107 Marshall further insisted that her solicitor, Grosz, keep her informed of all press statements made by the EOC, as well as of any future steps in the ECJ proceedings.Footnote 108 In the course of the lengthy proceedings, however, Marshall would agree to interviews with ‘serious interviewers who have some background knowledge of the case’.Footnote 109 In part, this shift could be explained by Marshall’s hope to earn some money, as a small compensation for all the financial costs she had had to bear along the way.Footnote 110
As Marshall flew home from Luxembourg after the ECJ’s decision, the media response was huge: her story had made the (front) pages of localFootnote 111 and nationalFootnote 112 newspapers across the UK. One legal commentator touted that ‘hundreds of thousands of women’ could be affected by the European ruling.Footnote 113 Some praised Marshall directly, whose case had ‘added some momentum’ to the unsolved problem of an equal state retirement age.Footnote 114 One commentator even went so far as to say that Marshall’s perseverance had earned her ‘a place in the history books’.Footnote 115
However, approval came in the company of censure. In the letters-to-the-editor sections, readers led off steam regarding the equalisation of the retirement age and Marshall’s role in it. Due to the relevance of Marshall’s case for the British society, the Guardian’s editorial had asked its readers to take a stand.Footnote 116 The responses were a potpourri of emotive reactions, with some praising Marshall, but many others insulting her. One female letter replied by accusing Marshall of being the ‘most selfish woman of the year’, claiming that Marshall thought she spoke for all women.Footnote 117 Not every woman wanted to stay in work beyond the age of 60, the letter added, and some were unable due to health reasons or had jobs that were far more physically demanding than Marshall’s. Moreover, her argument continued, Marshall’s case meant that younger people would be prevented from entering the labour market.Footnote 118 This trade-off between different, though correlated issues such high unemployment rates among the youth on the one hand and female employment on the other reflected a common thread in the retirement age debates.Footnote 119 This argument also revealed strong underlying gender stereotypes and the belief that women were not entitled to take up space; or only when needed.
Marshall also faced significant opposition from men who argued that the issue of the equal retirement age was not a women’s issue, but rather one that disadvantaged men. It was men, they claimed, who had to work until the age of 65, whether they wanted to or not and despite a lower life expectancy.Footnote 120 While women received retirement benefits, such as free public transport and hairdresser discounts, men had to pay the bulk of the state pension fund. Some argued that Marshall’s case had been backed by the ECJ’s judges ‘for wrong reasons’Footnote 121 and that the decision amounted to ‘the greatest sexist social injustices’.Footnote 122 There were even some well-informed readers who criticised the lack of harmonisation of the different state retirement ages across the European Community.Footnote 123
In her own statements to the Southern Daily Echo, Southampton’s local newspaper, Marshall said that ‘[I]t was worth every penny and every moment’ and revealed that ‘I never wanted to give up, but there have been times when the whole business has been very frustrating’.Footnote 124 She was further quoted in the Guardian as saying, ‘I am fighting this case because I think I was good enough to work on at least until 65, the same age as men’.Footnote 125 Marshall pointed out that ‘Mrs. Thatcher would reach 60 later this year, but showed no sign of giving up work’.Footnote 126 In addition, Marshall argued that according to statistics, 300,000 women turned 60 each year in the UK, and they ‘have usually had ten years out of work by that stage looking after children and the home and they have returned refreshed and vigorous. They are probably better able to continue working until 65 than many men’.Footnote 127
While Marshall’s 15 minutes of fame were a mixed blessing, the EOC seized this golden opportunity to improve its tarnished image as a toothless quango, a perception that was prevalent both within the women’s rights movement and among the larger public. Its lack of funding, personnel, and determination, a few observers noted, had led to a combination of ineffectiveness and relative costliness.Footnote 128 The EOC press office thus released a statement to the effect that their victory at the ECJ meant that women’s professional biographies could no longer be cut short by employers.Footnote 129 The EOC’s annual report of 1986 was therefore able to describe Helen Marshall’s lawsuit as its ‘most notable success’ and to claim credit for the government’s change of course.Footnote 130 Moreover, the case promised to have an impact on the direct effect of the Equal Treatment Directive more generally, providing the EOC with a potentially useful tool in a variety of policy fields. What may have mattered most to Marshall, though, was the EOC’s official acknowledgement of her role in this venture. The report gave her the credit she deserved and emphasised that it was ‘an example of the benefits that can be gained from one woman’s courageous action’.Footnote 131
Behind the scenes, however, the sense of triumph was somewhat qualified, not least because British politicians such as the Minister for Employment Kenneth Clarke promptly played down the decision’s significance.Footnote 132 As Alan Lakin from the EOC pointed out, the ECJ’s stipulation that the Equal Treatment Directive would only provide a basis for direct claims by public sector employees clearly disadvantaged their female counterparts in the private sector. Rather than rest on its laurels, Lakin suggested to the EOC Chief Executive that it was imperative to seize the momentum and urge the British government, yet again, to amend the Sex Discrimination Act of 1975 so that no female employee, whether public or private, would be legally discriminated against because of different retirement ages. Lakin also advised that the EOC should identify a test case from the private sector to make sure that a precedent supplementing the Marshall decision would be made sooner rather than later. He pinned his hopes in particular on the House of Lords, as the ultimate arbiter in the UK, suspecting that the Chamber might be inclined to decide in line with the Equal Treatment Directive because the retirement exemption in the Sex Discrimination Act was ‘not entirely free from ambiguity’.Footnote 133
Despite the unequivocal tone of the judgement and the fact that it had been anticipated by a British Advocate General, the Thatcher government professed its unwillingness to act upon it.Footnote 134 Unsurprisingly, its poor record on gender equality politics drew the ire of critics. At home, academic lawyer (and future EOC official) Susan Atkins remarked that more than a decade had passed since the introduction of the Sex Discrimination Act, yet the British government had done virtually nothing to push for either gender equality or women’s rights.Footnote 135 As to the British courts, lawyers shared Atkins’ concern that these were positively contributing to long, drawn-out proceedings in employment law by continuously refusing to accept the applicability of European legislation.Footnote 136
For once, these criticisms proved to be unfounded. With the second infringement proceeding against the UK and the Marshall decision coming in quick succession, the British government felt that amending the Sex Discrimination Act (and being done with it) was the lesser of two evils. The amendment was passed the same year, and the 1986 Act would explicitly prohibit discrimination on the grounds of different retirement ages between women and men in terms of unfair dismissal, including the private sector.Footnote 137 Eventually, in the 1995 Pension Act, the British government would amend the different retirement ages of women and men that had been in force since the Old Age Pension Act of 1940.Footnote 138 However, it would take until 2018 for the state retirement age to be fully equalised at age 65.Footnote 139
6. Interest rate as compensation or ‘we want our money back’
While Marshall’s original complaint was driven by first principles, it was the material side of the legal dispute that came to the fore in a lengthy epilogue that unfolded over the following years. And Marshall would, once more, pursue her goals with dogged perseverance.
In 1988, the ECJ decision came back to the Industrial Tribunal in Southampton. Whereas the 1975 Sex Discrimination Act stipulated £ 6,250 as the limit for compensation, the Industrial Tribunal decided that this limit would not provide an adequate remedy for Marshall. Thus, the local judges decided that the Health Authority must pay Marshall a total of £ 19,405 in compensation, including £ 1,000 for injured feelings and another £ 7,710 in accrued interest – calculated from the date of Marshall’s dismissal in April 1980 until the Industrial Tribunal’s decision in November 1986.Footnote 140
The decision did not only serve Marshall’s interest, but also that of the Industrial Tribunal itself, as the case coincided with a conflict over power in the judicial hierarchy of UK courts and the question of access to remedies. Up to the early 1980s, the prevailing opinion among British jurists – expressed in UK legislation – had given the competences to award interest on compensation to the court of records (eg, Hight Court and county courts), denying industrial tribunals to determine such matters. But the 1978 Employment Protection (Consolidation) Act had entitled the Secretary of State to issue regulations that allowed labour courts – such as industrial tribunals – to award interest on compensation.Footnote 141 Although British legislation had not been changed accordingly, the Department of Employment had issued a paper in 1988 in which it proposed to give labour courts the power to award interest. As a reminder for politicians to take action, Southampton’s Industrial Tribunal therefore argued that Section 35A of the Supreme Court Act 1981, which granted the Court of Records discretionary powers to award interest compensation, would also be applicable to industrial tribunals.Footnote 142
For Marshall, the Industrial Tribunal’s calculation meant great financial gain, since the total sum could buy her a considerable part of an average-sized house in a city like Southampton at that time.Footnote 143 Her former employer, perhaps now regretting making such an enthusiastic employee redundant, paid her the first sum but refused to cover the latter. In its appeal to the Employment Appeal Tribunal, the Health Authority referred to the Sex Discrimination Act and its upper limit of compensation to justify its defiance of the ruling. It further argued that the Industrial Tribunal did not have the power to award interest.Footnote 144
As Marshall was entitled to more compensation following the Industrial Tribunal’s decision, she received support from the EOC to contest the appeal at the Employment Appeal Tribunal.Footnote 145 In the proceedings, Marshall was once more represented by Michael Beloff, with Elizabeth Slade as a new addition to the team. Slade was an experienced barrister who had represented employees and employers in unfair dismissal cases, especially those relating to retirement age.Footnote 146 She shared the Industrial Tribunal’s view that it had the jurisdiction to award interest as compensation, and argued that under UK law, Marshall was entitled to the amount of interest set by the Industrial Tribunal. ‘Damages’ in the Sex Discrimination Act should be interpreted as ‘monetary awards’, which included interest, as the County Court jurisdiction had confirmed.Footnote 147 Furthermore, Slade referred to the latest ECJ rulings in relation to the Equal Treatment Directive, eg, the cases of three West German women – Dorit Harz, Sabine von Colson and Elisabeth Kamann –, who had been rejected in job application processes due to their biological sex in West Germany in the early 1980s. Under Federal German law, they had only been entitled to be compensated for application-related expenses, such as postage fees, at national labour courts.Footnote 148 The ECJ had stated in its 1984 judgement that the measure of compensation had to have a ‘deterrent effect’ and that it needed to be ‘adequate in relation to the damage’.Footnote 149 Eventually, the local courts had decided that the three women were entitled to receive a sum equivalent of six months pay and interest rate for compensation on the grounds of Article 6 of the Directive that obliged Member States to introduce ‘measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment...to pursue their claims by judicial process’.Footnote 150
Despite Slade’s arguments, the Employment Appeal Tribunal rejected Marshall’s appeal on the grounds of domestic law. The judges stated that interest was not part of damages and was therefore a matter of judicial discretion – which the Industrial Tribunals had no power to exercise. According to the Employment Appeal Tribunal, Marshall could not rely on European law either, as the ECJ had also ruled in von Colson/Kamann as well as in Harz that Article 6 of the Directive did not have direct effect in principle and European law could only apply if the sum was too small to have a deterrent effect. In the Employment Appeal Tribunal’s reasoning, however, Marshall’s legal entitlement of compensation (£ 6,250) was not meagre, but a ‘substantial right’.Footnote 151 Still, the judges agreed with Marshall that the limitation on awarding interest and the Industrial Tribunal’s lack of power to intervene in this area required a change in UK legislation, as this led to unfair outcomes, as in the Marshall case.Footnote 152
It should have taken no one by surprise that Marshall was unwilling to end her quest on a note of defeat. For Helen Marshall, there was undoubtedly a sense of déjà-vu for what was about to follow. She was determined to take the case, yet again, to the Court of Appeal. However, Grosz and Beloff had no intention of taking Marshall’s case any further, angering Marshall.Footnote 153 Having gained knowledge of law and experience with legal texts over the years, Marshall single-handedly drafted a review of the proceedings at the Employment Appeal Tribunal to highlight the dramatic nature of her case, but also to provide solid reasons for why the EOC should pursue it. Echoing Slade’s argument in the von Colson/Kamann and Harz cases, Marshall argued that the compensation did not reflect the damages incurred, as it was inadequate in light of the length of time elapsed since the start of proceedings. Therefore, she said, she was entitled to receive a higher amount of compensation, which should include interest. In her review, Marshall emphasised that there was no other way for the Industrial Tribunal to enforce the interest rate in the national courts because it had still not been given the power to do so. Since the British government had not amended its legislation accordingly, and had thereby failed to implement the Directive effectively, Article 6 was precise and unconditional, as the ECJ in his previous judgements had stated, implying direct effect.Footnote 154 As Marshall pointed out, it was no ‘over-reaction’ on her part since the judges of the Employment Appeal Tribunal had agreed with her.Footnote 155 All in all, Marshall simply did not see why she had to pay the price for the UK’s lack of implementation. She wanted the money that she thought she deserved.
However, despite her efforts, the EOC’s Legal Committee agreed with Grosz and Beloff in rejecting the case because it concerned the matter of interest only. In their internal comments on the proceedings at the Employment Appeal Tribunal, Marshall’s Legal Adviser agreed with Beloff’s assessment that the Tribunal’s decision was correct under domestic law and ‘probably’ also under European law.Footnote 156 And in light of the intra-judicial power conflict regarding interests on compensation awards – which the EOC indeed thought unfair but expected to be resolved in the future – the EOC had – once again – no interest in spending money on Marshall’s case for her sake alone. Neither made it sense testing European law, for that matter, if the question of court competences would soon be sorted out anyway.Footnote 157
Her fighting spirit intact, Marshall resorted to her original strategy of more than a decade earlier and represented herself at the Court of Appeal.Footnote 158 In yet another familiar scene, at least one of the professional jurists at the Court of Appeal recognised Marshall’s legal abilities. Brian Dillon, one of the three judges, depicted Marshall’s representation of her case as ‘detailed and scholarly’.Footnote 159 He agreed with her argument that Article 6 had direct effect since the legal remedy provided under British law was not proportionate to the damage suffered by Marshall.Footnote 160 However, Dillon’s colleagues did not share his opinion and voted to rule against Marshall, deciding that the compensation limits set out in the Sex Discrimination Act did not violate Article 6.Footnote 161 Therefore, the Court of Appeal refused Marshall’s application for leave to appeal to the House of Lords.Footnote 162 Marshall applied for leave to petition the House of Lords – which was a routine procedure – and was fortunate enough to be granted permission. This was a noteworthy decision, as the Appeal Committee of the House of Lords granted only few applications.Footnote 163 Clearly, Marshall’s case was deemed significant.
The next stop was thus the House of Lords – which made the EOC’s lawyers nervous given the prominence of the proceedings. Together with Stephen Grosz, the Legal Committee developed several scenarios of how the case might go and with what consequences. None of the lawyers involved expected Marshall to succeed, yet they there was an off chance that the House of Lords might confirm the previous instance’s reading of European Law and that Marshall’s argument about direct effect might stick. In this scenario, the British government could either amend the legislation or the European Commission might start infringement proceedings, or at the very least the EOC could ask for a judicial review. The decision to back Marshall was thus a financial gamble: to support Marshall’s appeal could turn out to be a ‘major strategic use’ of the EOC’s legal budget in case of winning or – in case of a defeat – it threatened to damage the EOC’s budget to the tune of £40,000.Footnote 164 In the end, the EOC went all in and granted assistance in the form of solicitor and two counsels to conduct Marshall’s appeal.Footnote 165
Luckily for the EOC, the gamble paid off. In October 1991, the House of Lords found merit in Marshall’s argument and, referring the dispute to the ECJ, asked whether placing a limit on compensation was in breach of Article 6 and whether individuals were entitled to make claims at national courts on those grounds.Footnote 166
Another two years later, in 1993, Marshall’s long legal journey came to its end. Represented by Stephen Grosz and Michael Beloff, her second appearance before the ECJ ended with similar success to the first. While the European Commission, represented by Nicholas Khan of the Legal Service, supported Marshall’s argumentation, the Health Authority as well as the government of the UK, not surprisingly, argued that it was up to the Member States to decide on the measures to achieve the principle of equal treatment.Footnote 167 The UK government argued that the legal basis as to whether or not the industrial tribunal had the power to award interest or not was unclear at this stage. Hence it was not for the ECJ to decide on this matter. Furthermore, the government of the UK referred to the ECJ’s own previous judgement, in which it had decided that the compensation should be ‘adequate in relation to the damage sustained’ and not only nominal – which it was not, in Marshall’s case compared to the compensation of the postage fees in the two West German cases.Footnote 168 The court had never, the UK government pointed out, argued for an exact amount of compensation. For this reason, it was deemed unnecessary to discuss the direct effect of Article 6 in more detail.Footnote 169
In its judgement on 2 August 1993, 13 long years after Marshall had been made redundant, the Grand Chamber of the court was again receptive to Marshall’s claim, finding that there had been a violation of the Equal Treatment Directive’s provision: Marshall’s legal right following the first decision was to be reinstated and she should be financially compensated for the loss and damage incurred. In passing judgement, the ECJ also confirmed that individuals could also bring claims on these issues to domestic courts.Footnote 170 Marshall was thus entitled to the full costs owed to her by the Health Authority. The British government, now under the leadership of John Major, decided to amend British legislation regarding the limits of compensation accordingly.Footnote 171
7. Conclusions
Due the limitations of the available sources, deeper biographical insights into Marshall’s motivations for embarking on her legal journey, the social trajectory she followed, or the evolution of her legal consciousness, must remain guesswork. However, in examining her legal adventures, several factors become apparent and lead back to the initial observations on the history of law ‘from below’ in European integration.
First, using this methodological approach to revisiting a landmark case offers a profound understanding of the embeddedness of EU law in Britain and allows appreciating how receptive British courts and the EOC, which had the necessary resources in terms of knowledge, networks, and funding, served as key facilitators. In addition, the existence of a culture of legal aid and citizen’s advice in British society, coupled with a decade-long dispute concerning pension rights, gender equality, and the welfare state also played an important part.
Second, the article shows how the debate on the direct effect of European Council directives spanned national and European courts. For individuals such as Marshall, the principle of direct effect was a key tool that could help them pursue their claims at national courts and, ultimately, at the ECJ. When Marshall’s case reached the court, the judges were receptive to strengthening the direct effect of indirect rules which had previously been fragmented in the court’s case-by-case jurisdiction. In the 1980s, when Marshall brought her case to the ECJ, the court was ready to challenge the Conservative government head on and turn Britain’s hierarchy of norms on its head in terms of equal treatment – less so in a broader, constitutional context.
Third, it reveals the motivations for engaging with European law, ranging from strategic litigation – and the significance of financial resources in making choices – to one woman’s quest for justice. Even though equal opportunities were on the British as well as European agendas, Marshall’s individual entrepreneurship did not succeed by simply blowing with the wind. She had to overcome many obstacles on her way to equal treatment, as the frequent losses at British courts illustrate. As a powerful institution, the EOC channelled Marshall’s entrepreneurship when it served its agenda, namely to further structural equal opportunity. At other times, the EOC lawyers were less interested in Marshall’s case as an individual matter, as they were more focused on broader issues. For Marshall, however, it was not just a legal case, but a personal quest, and ultimately a triumph. Without her determination, her deeply seated feeling that she was in the right, her ability to acquire the language of lawyers in order to be heard, and her ‘tenacity’ (to quote the ECJ), the EOC would have missed an opportunity that led to two successive victories for the cause of equal opportunities, most notably the amendment of British discrimination law. Nor would Marshall’s case ever have made an impact on the ECJ jurisdiction on the Equal Treatment Directive. For lawyers, Helen Marshall may have become a cipher for the fight for gender equality in European law, but for her, it had never been about the grander European picture. European law and integration were of secondary importance for her; it was all about her job, her satisfaction as a female employee, and her money. That was all that mattered to Helen Marshall.
Acknowledgements
I am indebted to all archivists involved, in particular Joseph Baldwin of the Southampton City Council. Magnus Esmark, Brigitte Leucht, Catherine Marshall, Dag Michalsen, Max Naderer, Kim Christian Priemel, Morten Rasmussen, as well as the two anonymous reviewers, I would like to thank for thoughtfully engaging with this paper and for their valuable feedback.
Competing interest
The author has no conflicts of interest to declare.
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