Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976.

Given Marshall suffered financial loss, namely the difference between her earnings as an employee and her pension, and since she lost the satisfaction gained from work she initiated proceedings before an industrial tribunal, contending her dismissal constituted discriminatory treatment on the ground of sex, contrary to the sexual discrimination act and community law.

The Court made reference of two questions for preliminary ruling to the European Court of Justice (ECJ): Advocate General Slynn argued the ‘state’ should be construed broadly, to cover all organs, saying that insinuating ‘horizontal effect’[1][2] into directives would ‘totally blur the distinction between EU directives and regulations'.

To the second question the Court held that the directive can be relied on by the individual against an actor of state, but not of private legal entities.

Thus it fell to enquire whether the NHS should be deemed an "independent legal person" or an "arm of the state"; and that was a matter for the national court.

However, even though the case affirmed that there would be no horizontal effect, it still found the AHA possibly in breach of the directive if it would be deemed a state actor.