AS TO THE ADMISSIBILITY OF
Application No. 11518/85
by Gandharv Raj CHAUHAN
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 July 1988, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission.
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 August 1984
by Gandharv Raj CHAUHAN against the United Kingdom and registered
on 3 May 1985 under file No. 11518/85;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure of the
Commission;
- the written observations submitted by the respondent Government on
30 April 1987 on the admissibility and merits of the application;
- the parties' oral submissions at the hearing before the Commission
on 12 July 1988;
- the Commission's decision of 1 December 1986 to communicate the
application to the respondent Government under Rule 42 para. 2 (b);
Having deliberated,
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom born in 1938
and is an electrician by profession. He resides in London. He is
represented in the proceedings before the Commission by Messrs. Simons
Muirhead and Burton, solicitors, London.
The facts as agreed between the parties may be summarised as
follows:
The applicant had been employed as an electrician by the
Ford Motor Company since 1978. The company had, at that time, a union
membership agreement which required an employee to be a member of a
union. The applicant had previously been a member of the Transport
and General Workers' Union (TGWU) since 1976 but his membership had
lapsed. He then joined the Electrical, Electronics, Telecommunication
and Plumbing Union (EETPU) as required by the union membership
agreement at the beginning of his employment with the Ford Motor
Company. In April 1980 he allowed his membership of the EETPU to
lapse by failing to keep up his subscriptions. From that date he has
not been a member of any trade union. However, he continued to work
for the Ford Motor Company and it was not until three years later,
early in June 1983, that the fact of his lapsed union membership came
to light.
The applicant claimed that he was a devout orthodox Hindu
belonging to the Radhaswami sect. He explained that this sect divided
its religious activities into four stages and that he had progressed
to the third stage. He considered that the religious teaching at this
stage of his religion did not permit him to be a member of a trade
union. The applicant offered to pay to charity a sum equivalent to
his union dues.
The applicant was subsequently invited by the Employee
Relations Manager to appeal to an independent panel, as provided for
under the union membership agreement, in order to explain the reasons
for his refusal. He subsequently refused to have recourse to this
appeal procedure since he considered that the panel could not be
regarded as independent so long as any member of a trade union was
represented upon it.
The applicant was subsequently dismissed from his employment
on 21 October 1983.
The applicant then filed an application before the Industrial
Tribunal. He complained that his dismissal was unfair since he had
genuine objections on grounds of conscience justifying his refusal to
join a trade union in accordance with Section 58 (4) of the Employment
Protection (Consolidation) Act 1978 (as amended).
On 23 January 1984 the Industrial Tribunal rejected the
applicant's case, finding that he had not proved a genuine and
conscientious objection. Accordingly, his dismissal was fair under
the 1978 Act (as amended). The Tribunal was satisfied that the
Employee Relations Manager had explored the applicant's stated
religious objections to trade union membership and that he was
entitled to conclude that the applicant did not have a genuine
conscientious objection.
The Tribunal added:
"In order to make a judgment on a man's beliefs and
motivations, it is necessary to take account of his actions as
well as his words. For our own part, we find it extremely
hard to reconcile the applicant's three-year silence with his
protestations of conscience."
The applicant appealed against this decision to the Employment
Appeals Tribunal. This appeal was rejected on 17 December 1984.
The applicant was advised by his lawyers that an appeal to the
Court of Appeal against this decision offered no prospects of success
and would involve him in substantial expense.
Relevant Domestic law and practice
The Employment Protection (Consolidation) Act 1978
consolidated the unfair dismissal provisions of previous legislation,
notably the Trade Union and Labour Relations Act 1974, the Employment
Protection Act 1975 and the Trade Union and Labour Relations
(Amendment) Act 1976. Under this legislation dismissal for not being
a trade union member was to be regarded as fair save where the
employee genuinely objected on grounds of religious belief to being a
member of a trade union.
The Employment Act 1980 provided greater protection for
employees who refused to join a trade union. Dismissal was to be
regarded as unfair for:
(a) employees who genuinely objected on grounds of
conscience or other deeply-held personal conviction to
being members of any trade union whatsoever or of a
particular union;
(b) employees who belonged to the class of employee
covered by the closed shop agreement before it took effect
and who had at no time subsequently been members of a trade
union in accordance with the agreement;
(c) employees working under a closed shop agreement brought
into effect after 14 August 1980, but not approved by at
least 80% of the emmployees covered by the agreement voting
in favour of the agreement in secret ballot;
(d) employees working under a closed shop agreement brought
into effect after 14 August 1980 which had been approved by
at least 80% of those employees covered by it in a secret
ballot in which the employee was entitled to vote if the
employee had not at any time since the day on which the
ballot was held been a member of the union.
In addition, a Code of Practice was issued with the authority
of Parliament and came into effect on 17 December 1980 (subsequently
revised in May 1983). It recommended, inter alia, that closed
shop agreements should protect basic individual rights, and be applied
flexibly and tolerantly and with due regard to the interests of
individuals as well as unions and employers. The Code is admissible
in evidence, but imposes no legal obligations.
The Employment Act 1982 further increased the protection of
union employees working in the closed shop as well as re-enacting the
closed shop dismissal provisions of the 1980 Act. In particular, the
1982 Act provides that the dismissal of an employee for not being a
member of a trade union, or for refusing to join one, is automatically
unfair where the closed shop concerned is not "approved". Up to
31 October 1984 any closed shop agreement which took effect on or
before 14 August 1980 counted as "approved". A closed shop agreement
which took effect after 14 August 1980 only counts as "approved" if it
has been supported in a secret ballot of all employees affected in
which 80% or more of those entitled to vote voted in its favour.
These were the provisions enforced when the applicant was dismissed
on 21 October 1983.
Since 1 November 1984 a closed shop agreement counts as
"approved" on a given date only if in the five years preceding that
date it has been supported in a secret ballot involving all the
employees affected. The required levels of support in the ballot are
set out in the 1982 Act.
Where a closed shop agreement is "approved" dismissal for non-
membership of a trade union is not automatically fair. The dismissal
of certain categories of employee for not being members of a trade
union, or for refusing to join one, remains unfair even where the
closed shop agreement is an "approved" one. The protected categories
are as follows:
(a) employees who genuinely object on grounds of conscience
or other deeply-held personal conviction to being members of
any trade union whatsoever or of a particular union;
(b) employees who belonged to the class of employees covered
by the closed shop agreement before it took effect and who
have at no time subsequently been members of a trade union
in accordance with the agreement;
(c) employees who work under an "approved" closed shop
agreement which took effect after 14 August 1980, were
entitled to vote in the first or only ballot through which
the closed shop agreement was approved, and have not since
the day when that ballot was held been members of a trade
union in accordance with the agreement;
(d) employees who at the time of dismissal either had been
found by an industrial tribunal to have been unreasonably
excluded or expelled from the trade union of which membership
was required under the closed shop agreement or who have a
complaint of unreasonable exclusion or expulsion by that
union lodged with an industrial tribunal under section 4 of
the 1980 Act;
(e) employees who have qualifications relating to their job
which make them subject to a written code of conduct and
either have been expelled from the trade union of which
membership is required because they refused to strike or
take other industrial action on the grounds that this would
have breached the code of conduct; or have refused to
belong to the union concerned on the grounds that
membership would have required them to take industrial
action in breach of the code.
If an employee is unfairly dismissed from either an "approved"
or an "unapproved" closed shop for not being a member of a trade
union, or for refusing to join one, an industrial tribunal can order
the employer to re-employ the employee concerned where this is
practicable or to pay him compensation. As a result of the 1982 Act,
compensation in such cases has been set at substantially higher levels
than in most other cases of unfair dismissal so as to act as a
deterrent.
COMPLAINTS
The applicant complains that the dismissal from his employment
was due exclusively to his refusal to join a trade union because of
his religious objections. He alleges that his dismissal was in breach
of Article 11 para. 1 (Art. 11-1) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 August 1984 and registered
on 3 May 1985. In a decision dated 1 December 1986 the Commission
decided that notice should be given to the respondent Government of
the application and that the Government should be invited to submit
observations on the admissibility and merits of the application
insofar as it raised issues under Article 11 (Art. 11) of the Convention.
These observations were submitted on 30 April 1987. The applicant's
observations in reply were received on 17 November 1987. The applicant
was granted legal aid by decision of the President of the Commission
dated 20 August 1987.
The Commission next considered the application on 8 March 1988
and decided to invite the parties to a joint hearing on the
admissibility and merits of the case insofar as it raised issues under
Articles 9, 11 and 14 (Art. 9, Art. 11, Art. 14) of the Convention.
The hearing before the Commission was held on 12 July 1988.
The Parties were represented as follows:
Respondent Government
Mr. M. C. Wood, Foreign and Commonwealth Office, Agent
Mr. N. Bratza Q.C., Counsel
Mr. R. Baker, Department of Employment, Adviser
Mr. R. Timm, Department of Employment, Adviser
Applicant
Mr. G. Robertson, Q.C., Counsel
Mr. B. Simons )
) Solicitors, Simons, Muirhead & Burton
Mr. R. Mireskandari )
SUBMISSIONS OF THE PARTIES
The respondent Government
Article 11 in conjunction with Article 9 (Art. 11 + Art. 9)
of the Convention
In the Government's submission where the complaint made is not
of direct interference by the State of the rights guaranteed by the
Convention but of a failure through its legal system to secure the
right against interference by the action of others, the Convention
requires the striking of a balance between the competing interests of
the individual and of society as a whole. A search for this balance
is inherent in the whole of the Convention (Eur. Court H.R., Sporrong
and Lönnroth judgment of 22 September 1980, Series A no. 52, para.
69).
In marked contrast to the position of the applicants in the
case of Young, James and Webster (Eur. Court H.R., judgment of
13 August 1981, Series A no. 44) the union membership, or closed
shop, agreement within the Ford Motor Company was in full effect at
the time when the applicant joined that firm. It is also clear that,
for a period of over two years, the applicant in fact belonged to a
trade union, first the TGWU and thereafter the EETPU.
Quite apart from the personal position of the applicant, the
applicable law at the time of the present applicant's dismissal was
substantially different from that which was in effect at the time of
the dismissal of the applicants in the case of Young, James and
Webster and which was found by the Court to provide inadequate
protection for the rights and freedoms guaranteed by Article 11
(Art. 11) of the Convention. In the submission of the Government, the
provisions of the 1980 and 1982 Acts, designed as they were to
increase the protection afforded to individual employees against
dismissal for refusing to join a union, strike a fair balance between
the rights of the individual and the right of other employees to
organise through the closed shop system. In contrast to the position
under the 1974 and 1976 Acts, which were the subject of the Court's
judgment in the case of Young, James and Webster, it is submitted that
the form of compulsion which is permitted under the 1982 Act and to
which the applicant was subjected does not strike at the very
substance of the freedom guaranteed by Article 11 para. 1 (Art. 11-1)
read on its own or in the light of Articles 9 and 10 (Art. 9, Art. 10) of
the Convention and did not give rise to a breach of that Article in
the circumstances of his case.
The Government further contest that Article 11 (Art. 11)
confers a negative right. The Court in the Young, James and Webster
case expressly proceeded on the assumption that the negative aspect
was not protected on the same footing as the positive aspect and that
compulsion to join a particular union was not automatically contrary
to this provision. The Court emphasised in that case that the
dismissal stemmed from a closed shop agreement which was concluded
after the three applicants were employed by British Rail. Such
compulsion was imposed on the applicants unilaterally and was not a
condition of their employment when they first applied for the job. In
the present case the applicant accepted the requirement that he join a
union as a condition of his employment by Ford Motor Company from the
outset. This was an essential part of his contract of employment
which he accepted voluntarily.
Moreover the applicant had an opportunity to submit his case
to an internal tribunal which could have granted him an exception on
the basis of his religious views. However the applicant withdrew his
appeal because he objected to the presence of a union member. The
Government do not accept that the presence of a union member in a
tribunal of three persons, with an independent chairman, is a good
reason for abandoning such an appeal.
Before the Industrial Tribunal the applicant sought to invoke
the provisions of Section 58 (4) of the 1978 Act (as amended)
submitting that he had genuine objections to union membership on the
grounds of conscience or other deeply-held personal convictions. The
applicant was represented by counsel before the Tribunal and it was
open to him to support his case by both written and oral evidence. In
the result, the Tribunal concluded from the material before them that
the applicant had not established that he had any genuine objection to
union membership on grounds of conscience or other deeply-held
personal conviction. In so holding, the Tribunal placed particular
reliance on the fact that the applicant had not asserted any
objections to union membership until challenged some three years after
he had allowed his membership to lapse.
In reviewing the decisions of the Industrial Tribunal and the
Employment Appeal Tribunal the Commission should limit itself to the
question whether such a determination was unfair, perverse, arbitrary
or otherwise a denial of the applicants rights (see, mutatis mutandis,
No 8378/78, Dec of 14.5.80, D.R. 20 p. 168). However, in his
application to the Commission, no complaint is made that the applicant
was given an unfair hearing before either the Industrial Tribunal or
the Employment Appeal Tribunal or that the decision reached by either
of the Tribunals was arbitrary. Nor is it suggested that the
decisions resulted from a misinterpretation or misapplication of
Section 58 (4) of the 1978 Act (as amended) or that no Tribunal
properly directing itself could reasonably have concluded that the
applicant had no genuine objections to union membership on grounds of
conscience or other deeply-held personal convictions.
The Government submit that in such circumstances neither the
relevant provisions of domestic law nor the application of those
provisions by the domestic tribunals upset the fair balance required
by Article 11 para. 1 (Art. 11-1) of the Convention.
Article 14 (Art. 14) of the Convention
The Government submit that the applicant was given exactly the
same treatment as other persons including members of other religions
in a comparable situation. Neither the statutory provisions in force
nor the Industrial Tribunal or Employment Appeal Tribunal treated the
applicant in any way unfairly or less favourably than an applicant of
a different religious persuasion. This complaint should therefore
be rejected as manifestly ill-founded.
The Applicant
Article 11 in conjunction with Article 9 (Art. 11 + Art. 9) of
the Convention
The present application is made on the basis that United
Kingdom domestic law and practice does not afford the applicant
protection of his rights and freedoms under Article 11 in
conjunction with Article 9 (Art. 11 + Art. 9) of the Convention. In
particular, protection against unfair dismissal does not extend to a
situation where:
(1) the applicant is a devout orthodox Hindu;
(2) the applicant refuses to join a trade union.
The applicant points out that if the union membership
agreement at his place of work had come into effect after 14 August
1980 he would have had the opportunity to vote on its application and,
moreover, would have been protected from unfair dismissal on the
ground of non-membership if he had not been a member of a trade union
since the required ballot. The applicant submits that in making this
provision the United Kingdom has impliedly recognised that the legal
position for union membership agreements made before 14 August 1980 is
in breach of the principle of freedom of association. Since the union
membership agreement at the applicant's former place of work came into
effect before 14 August 1980 he has been denied the opportunity of
wider protection from dismissal on the grounds of non-membership of a
trade union.
The applicant states that, although he knew the existence of,
and understood the provisions of, the union membership agreement when
he accepted employment with the Ford Motor Company, this cannot be
taken to imply that he either agreed with it, or that, by taking up
employment, he thereby waived any right to leave the union and seek
protection from dismissal at a later date.
As regards questions of fact, the applicant makes the
following points:
- that in his application to the Commission the applicant stated
that when he began his employment he joined the union under duress as
there was no legislation prevailing at that time which protected those
who did not wish to be a member of a trade union;
- that there was at no time any legislative provision which
required him to articulate his conscientious objections to union
membership either when the membership lapsed in April 1980 or in the
period up until June 1983;
- that the religious involvement of the applicant became more
intense between the years 1978 to 1983. The fact that the applicant
remained a union member for two years from 1978 until 1980 does not
imply that he acquiesced to union membership since the consequences of
renouncing his membership were likely to involve his dismissal. At
the time of seeking employment in March 1978 his religious beliefs
made him reluctant to join a trade union but they were not so strong
as to amount to an overriding conscientious objection to membership.
However by April 1980 he had progressed to a higher stage in his
religious feeling and believed that his religious views were utterly
incompatible with trade union membership. These views stressed
non-violence, commitment to truth and freedom from any form of
extra-legal compulsion. The applicant thus considered himself under
an absolute duty never to be associated with any false statement
through membership of a group or to be associated with any group that
espouses violent actions and, finally, not to be a party to duress
over others or to allow himself to be the victim of compulsion;
- that the reason the applicant withdrew his appeal to the
independent panel was on the grounds that the panel could not be
regarded as independent since it included a trade union
representative. Where a member is being judged by a trade union
member there must be a reasonable fear of bias when one is submitting
that trade union membership may involve departure from the truth and
association with acts of violence;
- the applicant remained silent about his decision to leave the
union because this was an action taken from private beliefs and
because he would have suffered immediate victimisation and job loss.
The applicant submits that the failure on the part of the
United Kingdom to protect the applicant against dismissal on the
grounds of his refusal to join a trade union is a breach of Article 11
para. 1 (Art. 11-1) of the Convention. Article 11 (Art. 11) confers a
negative right not to join a trade union even where a union membership
agreement is in force. The freedom to form or join a trade union does
not mean that one is obliged to do so. Only that one is permitted to
do so.
Accordingly, the freedom to join a trade union must encompass a
freedom not to join. A person cannot be free to do something unless
he or she is free not to do it. Since freedom presupposes an element
of choice, a regime of compulsion is incompatible with the very idea
of freedom. The closed shop as applied in the circumstances of the
applicant's case afforded him no real choice whether to join a union
or not, since his only other option entailed a loss of livelihood.
In this connection, the tenor of the judgment of the Court in
the case of Young, James and Webster favours such a negative freedom.
Thus the majority stated that "the situation facing the applicants
clearly runs counter to the concept of freedom of association in its
negative sense ..." (loc. cit., para. 55). Moreover, the majority
reasoned that a threat of dismissal (including loss of livelihood) is
a "most serious form of compulsion - striking at the very substance of
the freedom guaranteed by Article 11 (Art. 11)" (loc. cit., para. 57).
Such reasoning would make little sense if it was not based on a
presupposition that Article 11 (Art. 11) protects non-membership as
well as membership of a union or other association. The compulsion
suffered by the applicant involved a threat to extinguish his
livelihood at a time of high unemployment. In reality, the situation
of the applicant was the same as that faced by the applicants Young,
James and Webster.
The Court in Young, James and Webster also put much emphasis
on the concept of freedom of choice. In particular it held that:
"An individual does not enjoy the right of freedom of
association if in reality the freeedom of action or choice
which remains available to him is either non-existent or so
reduced as to be of no practical value" (loc. cit., para. 56).
It is submitted that the applicant's choice, because of his
religious beliefs and because of the nature of the union membership
agreement, was so reduced as to be of no practical value. This choice
was further reduced by the fact that the only alternative open to the
applicant involved loss of livelihood. The applicant accepts that
under present United Kingdom law protection is afforded to persons not
wishing to be members of a trade union if, inter alia, their
objection is based on conscience or other deeply held personal
conviction. However, protection under present legislation does not
extend to the situation in which the applicant finds himself, namely
an Orthodox Hindu who refuses to be in a trade union.
In respect of the respondent Government's submission that the
applicant should be regarded as having consented to join the union
since he was aware that this was a term of his contract of employment,
the applicant points out that the Court has indicated in the Young
James and Webster case that there might be compulsion even in this
situation (loc. cit., para. 53). Furthermore the applicant joined the
union under duress in a situation where there was limited statutory
protection for persons not wishing to join trade unions.
Since the right not to join a trade union has been recognised
the right to leave a union, after the contract of employment is made
without the consequent loss of a job, must follow. If the principle of
freedom of association is infringed by dismissal from employment on
the grounds of non-membership of a union it can make no logical
difference whether the union membership agreement on which dismissals
are based was concluded before or after the contract. The mere fact
that someone has exercised his right of association does not mean
that he should forever be bound by it.
The applicant contends that the "balancing" approach proposed
by the respondent Government is erroneous. Once there is an
infringement of Article 11 para. 1 (Art. 11-1) there is no longer any
balance to be struck between competing interests. Unless the
Government can bring themselves within the narrowly interpreted
exceptions in Article 11 para. 2 (Art.11-2) - which has not been
argued in this case - the applicant must succeed.
As regards Article 11 in conjunction with Article 9
(Art.11 + Art. 9) the applicant submits firstly that the requirement that he
join a trade union irrespective of any religious beliefs he might hold
constitutes a breach of these provisions read together. A rule that obliges an
individual to act contrary to the teachings of his religion amounts to an
infringement of religious freedom.
Secondly Article 9 (Art. 9) of the Convention extends to the
freedom to change belief. The applicant changed his belief when he
progressed to a higher stage of his faith. It was for this reason
that he allowed his membership to lapse in 1980. The applicant
submits, in this respect, that a system which allows his dismissal for
leaving a trade union unless he can discharge the burden of proving
his religious convictions is in breach of these provisions. It is a
violation of religious freedom to be required, on pain of having the
dismissal upheld, to prove the genuineness of ones private religious
views particularly if one is a member of a little-understood religious
sect which imposes higher duties in the course of religious
advancement. Furthermore it is incompatible with the protection of
intimate spiritual beliefs under Article 9 (Art. 9) that an individual
should be required to expose elders of his sect or church to
cross-examination in public about innermost religious feelings, with
the risk of being held up to ridicule, as a pre-condition of
protecting his freedom of association.
The applicant submits that, after providing an indication of
membership of his religion and of the contents of his religious belief
in the form of the Ordinances of Manu, the burden of proving that the
belief is not a genuine one ought to have been borne by the employer.
In the circumstances of the case it is submitted that the law
with regard to unfair dismissal and its application by domestic
tribunals in the present case breached Article 11 (Art. 11) of the
Convention, considered alone or in conjunction with Article 9 (Art. 9)
of the Convention.
Article 14 (Art. 14) of the Convention
The applicant further submits that he has suffered
discrimination in the enjoyment of his rights under Articles 9 and 11
(Art. 9, Art. 11) contrary to Article 14 (Art. 14) of the Convention.
Those who hold religious opinions which preclude them from
joining trade unions are placed under two discriminatory burdens.
First they are subjected to duress and pressure to compromise their
religious faith. Secondly those who are members of little-understood
religious faiths, such as the applicant, bear a much heavier burden of
explanation and proof of their creed than members of more traditional
religions whose views are well understood by tribunals.
THE LAW
The applicant, who was dismissed from his employment because
of his refusal to rejoin a trade union, submits that union membership
was incompatible with his deeply-held religious beliefs. He complains
under Articles 9, 11 and 14 (Art. 9, Art. 11, Art. 14) of the Convention.
Article 11 para. 1 (Art. 11-1) of the Convention reads as follows:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and join trade unions for the protection of his interests."
Article 9 para. 1 (Art. 9-1) of the Convention reads as follows:
"1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom
to change his religion or belief and freedom, either
alone or in community with others and in public or
private, to manifest his religion or belief, in
worship, teaching, practice and observance."
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
The applicant first submits that Article 11 para. 1
(Art. 11-1) contains a general negative right to choose not to be a
member of a trade union. He points out that although he knew of the
existence of a union membership agreement when he accepted employment
with the Ford Motor Company, this cannot be taken to apply that he
either agreed with it, or that, by taking up employment, he thereby
waived any right to leave the union subsequently. He further
complains of a breach of Article 11 read in conjunction with
Article 9 (Art. 11 + Art. 9) since the requirement to join a trade union is
incompatible with his religious beliefs. The applicant explains that he is a
devote orthodox Hindu who belongs to the Radhaswami sect and whose religious
beliefs had progressed to a higher stage when he allowed his union membership
to lapse in 1980. These religious beliefs involved a rejection of the use of
violence, a deep attachment to the truth and freedom from duress. In
particular, he complains that the requirement under the law of the United
Kingdom, that he should prove the genuineness of his private religious beliefs
and expose the elders of his sect to public cross-examination concerning the
intimate details of his creed, constitutes a breach of Articles 9 and 11
(Art. 9, Art. 11) of the Convention read together.
Finally, the applicant complains that he was a victim of
discrimination in the enjoyment of his rights under Articles 9 and 11
(Art. 9, Art. 11) of the Convention in that firstly he was required to
join a union irrespective of his religious beliefs and that he was
required to bear a heavier burden of proof before the Industrial
Tribunal than other more traditional faiths.
The respondent Government submit that the applicant accepted
voluntarily to join a trade union on taking up employment with the
Ford Motor Company. They also point out that the applicant was given
full opportunity to establish the genuineness of his beliefs and was
represented by counsel both before the Industrial Tribunal and the
Employment Appeal Tribunal. These bodies concluded on the basis of
the evidence before them that the applicant had not established that
he had any genuine objection to union membership on grounds of
conscience or other deeply held personal convictions. There is no
indication that these decisions were perverse or arbitrary or
otherwise a denial of the applicant's rights under the Convention.
The Government contend, with reference to the case of Young, James and
Webster (Eur. Court H.R., judgment of 13 August 1981, Series A no. 44),
that Article 11 (Art. 11) does not guarantee a general negative
freedom not to belong to a trade union. Finally, the Government
maintain that the applicant has not substantiated his complaint of
discrimination and was treated in the same way as a member of any
other religion in a comparable situation.
The Commission considers, in the light of the parties'
submissions, that the application as a whole raises complex issues of
law and fact under the Convention, the determination of which depend
on an examination of the merits of the application.
It concludes, therefore, that the application cannot be
regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention and no other ground for
declaring it inadmissible has been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)