VGN_212
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Hi all

Okay so I'm half way through a problem question concerning direct effect, indirect effect and state liability. Basically the member state failed to implement the directive properly, it went against the exact terms of the directive. The parties concerned worked with chemicals for 5 hours, the directive said that they were only allowed to work with them for 3 hours. The uk statute said they could work with them for 6 hours.Both parties have contracted rashes and have been dismissed by their employers. One is a university and one a private company (x pharmacy)

I have established that party a can go down the indirect effect route because he his place of work is a privately owned company (x pharmacy).

I have established that party b can rely on direct effect because she is employed at a university. I have applied all the cases required.

However, there is a piece in this fictitious scenario which says that previous legislation provides that employees can be compensated by their employers if they get health problems.

My question is how to both parties go about claiming compensation, and reinstatement in their employment? Surely the university and the pharmacy were not at fault because they simply obeyed the uk statute which was a blatant breach of the eu law. So is it the pharmacy that will have to pay compensation to party b? It doesn't seem right to me that the pharmacy has to pay out, and if so HOW, do we go about getting that compensation for the man who works at the pharmacy and has been sacked? Do we apply this uk legislation that says the employer must pay?

And what of the woman who worked in the university? The law won't let the university pay, so is she claiming off the state? What courts will the action have to go to? A trip to mainland eu? It's clearly not unfair dismissal, right?

Please somebody shine some light on this, I am sick to death looking at this and I have convinced myself what I have written is a pile of dog poo.
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Alex Varga
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Hey

in my opinion company a (CA) may be an emanation of the state (for criteria see Foster v British Gas) therefore able to rely on the vertical direct effect of the insufficiently transposed directive as long as it satisfies the van gend en loos criteria (Van Duyn) and the deadline date has passed (Ratti)

CB is not an emanation of state therefore will not be able to rely on the directive. They can argue state liability (Franovich and Dillenkoffer) or indirect effect (Van Colson) or that EU law is supreme (Costa v E.N.E.L.)
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Alex Varga
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Both of them are able to sue in UK courts.
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Alex Varga
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I think unfair dismissal is a red hering.
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VGN_212
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Hi, Alex, thank you so much for your response!

With regards to damages, who will be paying out? The state in the university case and the pharmacy in the private company case? It doesn't make sense to me that a private company has to pay out because of the state's failure to implement the directive properly. And do I apply the legislation that says the employers (excluding universities) are liable for compensation to employees who get health problems through work? Or do I bypass that and state that the private company employee will get compo damages through indirect effect?

Would these damages include the money that the employees would have gotten had they not been dismissed? And is there a case which warrants specific damages for chemical exposure, to beef up my marks a bit? And this is a high court issue in the UK? Both parties should e reinstated in their employment and receive compo, is that correct?

I am so sorry to be a pain with all these questions, but I would really appreciate some clarification.

Thank you
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Alex Varga
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Hey VGN,

You are welcome!

I am only a 2nd year llb student getting to be examined in the topic so I am not sure whether there was a case in relation to chemical exposure, if I was you I'd try searching on Westlaw.

In relation to damages. CA will be paying out If the Claimant wins. CB, the private company will not be sued under state liability, the State will be sued so in case the claimant wins, the State will have to pay the damages.

Been thinking about unfair dismissal. I don't know much about employment law, but I do know that an (ex) employee would have to have at least 2 years continuous employment to be able to sue. However, if you do want to mention this angle than you should distinguish between employment law and eu law. If both claimants would sue for unfair dismissal the damages would be paid out by the companies sued if claimants won. If they sue because of the damage suffered Claimant A would sue its former employer and rely on the directive, Claimant B would sue the UK under the heading of state liability.

Good luck,
Alex
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