FOURTH SECTION
Application no. 52962/11
Terence BROUGH against the United Kingdom
lodged on 3 August 2011
STATEMENT OF FACTS
The applicant, Mr Terence Brough, is a British national who was born in 1948 and lives in Liverpool. He is represented before the Court by Mr S. Cottingham of O.H. Parsons & Partners, a firm of solicitors practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The Consulting Association’s database
In February 2009 the Information Commissioner’s Office (“ICO”) uncovered a database managed by an organisation known as The Consulting Association (“TCA”). The database held details of the trade union membership and trade union activity of over three thousand industrial workers, predominantly from the construction sector.
In return for an annual fee, companies who subscribed to the database could access the workers’ details and add information to the database. The database was therefore used to “blacklist” workers. In other words, companies could use the database to vet job applicants and refuse employment to those listed on it. The workers on the database were named but the companies who provided or accessed the information were listed by code number. The ICO has identified and released some of the names of these companies but not all of them.
2. Impact of “blacklisting” on the applicant
The applicant is a bricklayer who has worked in the construction industry for over thirty years. During that time he was an active member of an independent trade union and between 1976 and 1982 he served as a union shop steward representing his fellow workers’ interests vis-à-vis their employer and organising industrial action.
On 11 May 2009 the applicant discovered that his name was on the TCA database.
The first entry is dated 10 July 1985. It notes that on 3 March 1976 a company identified as “1194” reported the applicant to be a “militant troublemaker”. The same 1985 entry records that on 12 January 1982 another company identified only as “1158” also reported the applicant to be a “militant troublemaker”.
The next entry, which is also dated 10 July 1985, records that a company identified as “250” checked the applicant’s details and that “L5 informed company”.
Two further entries on 2 June 1988 and 12 July 1988 record that the applicant’s details were checked by companies identified as “7013/1” and “7051/9”.
The ICO was unable to identify the companies referred to as 250, 1158 and 1194. Nor could it confirm the identity of L5. However the two companies that checked the applicant’s details in 1988 were identified.
Between June and August 1988 the applicant had been out of work. During this time he had applied for jobs with both of the companies identified by the ICO. In both cases his application was unsuccessful. He subsequently returned to his previous employment in August 1988 and remained there until 2002.
There is no record of any contemporaneous complaints about the applicant’s work, professional performance or conduct.
3. Domestic proceedings
Following the ICO disclosure the applicant brought a claim against the two identified companies under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) on the ground that they had unlawfully refused to offer him employment because of his trade union activities and/or membership.
One of the respondents applied to have the applicant’s claim struck out on the ground that it was brought against the wrong respondent. At the time, the respondent company had represented a group of companies trading under the same name. Due to redactions made by the ICO it had not been possible for the applicant to determine which was the responsible company. In addition, both respondent companies submitted that the claim was brought out of time as the 1992 Act required that all claims should be brought within three months of the date of the relevant incident, unless the limit was extended by the Employment Tribunal.
The application was heard on 22 July 2010. At the hearing the respondents raised a third argument: that section 137 of the 1992 Act had only come into force on 16 October 1992 and, as such, the actions complained of were not unlawful at the material time. The applicant’s representative conceded the point and the claim was struck out on that basis. The applicant was ordered to make a contribution towards the respondents’ costs of GBP 1,288.
On 17 September 2010 the applicant sought leave to appeal against the order to the Employment Appeal Tribunal (“EAT”). In the application he alleged that there had been a violation of his rights under Article 11 of the Convention.
The application for leave to appeal was refused on the papers on 9 February 2011. The judge held that:
“The argument in the Notice of Appeal was not raised before the Employment Tribunal and cannot therefore be raised on appeal.
In any event, the failure [if it be that] on the part of the Government to legislate to give effect to an Article 11 right could not give the [applicant] a cause of action against the Respondent.”
The applicant did not pursue any further appeal, although the possibility did exist for a further oral hearing under Rule 3(10) of the EAT Rules.
B. Relevant domestic law and practice
1. Legislation prohibiting “blacklisting”
Limited protection was first introduced under section 1 of the Employment Act 1990 which made it unlawful to refuse a person employment on the grounds of their membership of a trade union. This provision was consolidated into the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the relevant provisions of which came into force on 16 October 1992.
Under section 137 of the 1992 Act it is unlawful to refuse a person employment for reasons related to the fact that he or she is a member of a trade union. Pursuant to subsection (2) any person who alleges that he or she was unlawfully refused employment can complain to an Employment Tribunal.
Under section 139 of the 1992 Act any such complaint must be presented to the Employment Tribunal before the end of a period of three months from the date of the conduct to which the complaint relates. The Tribunal has a power under subsection (1)(b) to extend the period by any further period that it considers reasonable. This power may be exercised where the Tribunal is satisfied that it was not “reasonably practicable” for the claimant to present the complaint before the end of the three month period.
Section 140 of the 1992 Act allows the Employment Tribunal to order such a remedy as it considers “just and equitable”, including the payment of compensation or a recommendation to the respondent employer.
On 2 March 2010 the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“the 2010 Regulations”) came into force. Under regulation 3 this enactment brought into force a specific prohibition on the practice of blacklisting (described in the Regulations as the use of a “prohibited list”). Under regulation 5 a person has a right of complaint to an Employment Tribunal if he or she is refused employment for reasons relating to the use of a “prohibited list”.
2. Appeals to the Employment Appeal Tribunal
Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (as amended) provides that a notice of appeal filed with the Employment Appeal Tribunal need have “no further action” taken on it where it appears that, inter alia, there are “no reasonable grounds for bringing the appeal”. The appellant, in these cases, should be informed of the reasons.
Under Rule 3(10) if the appellant is dissatisfied with the reasons given he is entitled to have the matter heard before a judge who will make a direction as to whether any further action should be taken in respect of the notice of appeal.
COMPLAINTS
The applicant complains that the absence of legal protection against blacklisting both at the time and retrospectively violates Article 11 taken alone and/or in conjunction with Article 14 of the Convention. In particular, the applicant contends that the lack of protection, remedy or penalty represents an inhibition on the exercise of trade union rights under Article 11. He further contends that he has been treated differently from other, non-union workers on the basis of his activity within his trade union.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted domestic remedies within the meaning of Article 35 of the Convention?
2. If so, did the absence of any legislation to protect trade union members against the practice of “blacklisting” in and around 1988 violate his rights under Article 11 of the Convention, taken alone or in conjunction with Article 14?
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