Princess Anne Homework (Question 1)

Written by Gary Bradbury (April 2006)

This is a complex situation with various points that can be interpreted in different ways. The main issue is whether or not this can be taken along the lines of an employment case. Some believe being the monarch and the head of state is a job, while others disagree. However, it is important that this decision is looked at from both sides.

It may be decided that it is not an employment case. This is because it is a hereditary post. It therefore does not follow the same rules as other types of employment. For example, there is no wage and no “employer”, etc. Due to this Princess Anne would be unable to rely on Article 141 of the Treaty Of Rome. This is because it refers to treatment in matters of employment – hence irrelevant having distinguished that it is not an employment matter.

However, we also need to consider what actions can be taken if being monarch is viewed as a form of employment. Princess Anne could take the case to an employment tribunal. Due to being a citizen of a member state of the European Union, she can rely upon any article in the Treaty of Rome even if it hasn’t been specifically enacted in English domestic law. This was shown in the case of Van Duyn v Home Office (1974), where a citizen of the European Union was denied freedom of movement into the UK. The case was referred to the European Court of Justice where it was decided that an individual could rely on any article of the Treaty of Rome that conferred individual rights (in this case Article 39 – right to freedom of movement). Therefore Princess Anne could rely on Article 141 of the Treaty of Rome. This article refers to equal treatment of men and women in matters of employment. Princess Anne could argue she has been unfairly treated and discriminated against due to the position always being offered to male candidates. She could use her claim of having more experience to give reason as to why she should be given the “job”. It is unlikely however that the employment tribunal will be able to solve the case on it’s own due to the complexity of the issues. It should be referred to the European Court of Justice.

Due to the job of Monarch being a state post, it will also be possible for Princess Anne to rely on the EU Equal Treatment Directive 76/207. This is due to the “vertical direct effect” theory. This suggests that an individual can bring a claim against the state or an “arm of the state”. This was illustrated in the case of Marshall v Southampton and South West Hampshire Area Health Authority (1986). Here Miss Marshall was required to retire at the age of 62, while male employees doing the same work were allowed to work until age 65. Although this was not seen as discriminatory under the Sex Discrimination Act 1975, she was able to rely on the EU Equal Treatment Directive 76/207. She succeeded in her action for unfair dismissal due to her employer being part of the state. This showed the directive had vertical effect.

Princess Anne would be able to rely on the directive because the position of Monarch is undeniably part of the state. This is backed up by the interpretation of the wording of the directive. By stating “….. for access to all jobs, whatever the sector or branch of activity and to all levels of the occupational hierarchy”, it seems to suggest a wide spectrum of employment matters can be used under the directive.

Through use of the directive, Princess Anne would be able to argue she has been sexually discriminated against in “the conditions of selection criteria”. This is because she has been told she can’t take the throne because the heir must be male.

As stated earlier, it is likely that if the case were taken to an employment tribunal, it would be referred to the European Court of Justice. The case of Bulmer v Bollinger (1974) set out the approach to be used when deciding whether a discretionary referral should be made to the European Court of Justice. It was decided that: guidance on a point of law must be needed to come to a decision in the case; there is no need to refer on point decided in a previous case; there is no need to refer a point that is reasonably clear (known as the “acte clair” doctrine); the court must consider all the circumstance of the case; and the English court retains the discretion of whether to refer or not.

In the case of Princess Anne’s argument, the case would definitely be referred on to the European Court of Justice. This is because of the complexity of the case and it’s obvious importance.

If the case is referred to the European Court of Justice and it is decided that Princess Anne has been subject to unlawful sex discrimination, the ruling made will take precedence over the Act of Settlement of 1701. By joining the European Union, the United Kingdom has handed over supreme power from the national courts to the European Courts. It was the decided in the case of Van Gend en Loos (1963) that European Law takes precedence over national law. This case involved a conflict of Dutch Law and European Law regarding customs duty. The Dutch government, claimed they could decide their own rulings on the matter, but the European Court of Justice dismissed this argument.

This shows that the sovereignty of Parliament has been affected by joining the European Union. With a ruling in her favour, Princess Anne will not have to worry about the Act of Settlement of 1701. This is because the European Law will take precendence over any previous, present or future national law.

As you can see there are several complex points in this case. The key decision is whether or not becoming the Monarch is a form of employment. If ruled so, Princess Anne can rely on both Article 141 of the Treaty of Rome and the EU Equal Treatment Directive 76/207. I advise that she take her case to an employment tribunal where the case will be referred to the European Court of Justice for further consideration.

Question 2 (Mary – Director of Macbeans)

• From reading the details of the matter, it is obviously a sex discrimination case. Mary has been wrongly discriminated against by her employers as she is getting less benefit than her male counterparts.

• Mary could take the case to an employment tribunal and would be able to rely directly on Article 141 of the Treaty of Rome. This article refers to equal treatment of men and women in employment matters. In Mary’s case, she has not been treated equally. Individuals belonging to member states are able to rely on any article in the Treaty of Rome even if the case shows no breach of domestic law. This was illustrated in the case of Macarthys Ltd v Smith (1980). In this case, Wendy Smith was paid less than her male predecessor for exactly the same job. Although this was no breach of English Law (as they were not employed at the same time), Wendy could claim under Article 141 of the Treaty of Rome. This shows the direct applicability of treaties as regards to individuals’ rights. Mary’s case is linked to that of Wendy Smith, which could be used as precedence.

• If the case were to be taken to an employment tribunal, it is unlikely that it would need to be referred onto the European Court of Justice. Following the approach set out in Bulmer v Bollinger (1974), there would be no need to refer the point of law, as it is “reasonably clear and free from doubt”. This is known as the “acte clair” doctrine. This means that the court hearing the case will be able to make their own rulings due to the simplicity of the case.

• Unfortunately for Mary, she would not be able to rely on the EU Equal Treatment Directive 76/207. This is due to the horizontal direct effect theory. This is that directives that have not been correctly implemented do not give an individual any right against other people. For success, the claim must be against the state or “an arm of the state” (known as vertical direct effect). This was illustrated in the case of Duke v GEC Reliance Ltd (1988). Here Mrs Duke was unable to rely on the EU Equal Treatment Directive 76/207 because her employer was a private company. This causes the same problem for Mary as Macbeans the bean factory is not part of the state.

• However, Mary would be able to claim compensation from the state for failure to fully implement the directive. This was decided in the case of Francovich v Italian Republic (1991). In this case, the Italian Government had failed to fully implement a directive aimed at protecting wages of employees whose employer becomes insolvent. As a result when the firm for which Francovich worked went into liquidation owing him wages, he sued the state for his financial loss. Therefore, Mary could bring a claim for compensation against the state.
  • This case is fairly clear-cut. It is obviously a sex discrimination case and if taken to an employment tribunal, Mary could rely directly on Article 141 of the Treaty of Rome. I advise her to take the case up and try to claim compensation from the state for loss of benefits.