AS TO THE ADMISSIBILITY OF
Application No. 12237/86
by Maria De Souza
against the United Kingdom
The European Commission of Human Rights sitting in private
on 4 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 January 1986
by Maria De Souza against the United Kingdom and registered on
24 June 1986 under file N° 12237/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen born in 1939 in
Kenya. She is a secretary/personal assistant by profession and
resides in Basingstoke, England. She is represented before the
Commission by Mr A.P. Fishleigh, solicitor with Messrs Snow and
Bispham, Basingstoke.
The facts as submitted by the applicant may be summarised as
follows:
The application arises out of the applicant's complaint to an
Industrial Tribunal of racial discrimination, contrary to Section 4 of
the Race Relations Act 1976 (the 1976 Act), by her employer.
The applicant, a coloured woman, was employed without any work
problems from 4 January 1977 with a private company. After some five
years she reached the top of her salary scale in that grade.
In January 1982 a work reorganisation required her to work for
two rather than one of the firm's managers as she had done previously.
Her wage was not increased. This made her feel that she was being
discriminated against on racial grounds. Moreover she was no longer
invited to the staff Christmas lunch and she overheard one of the
managers tell a clerk to give some typing to "the wog", meaning the
applicant. ("Wog" is a term of abuse regarding coloured people.)
The Industrial Tribunal, and, on appeal, the Employment Appeal
Tribunal and the Court of Appeal, found that the applicant had not
suffered racial discrimination contrary to the 1976 Act. In the final
decision of the Court of Appeal on 19 December 1985 it was held that
the work reorganisation did not affect the applicant's workload and
that she received no increase in her salary because she had already
reached the top of her salary scale in her grade. Section 4 (2)(c) of
the 1976 Act makes it unlawful for any employer to discriminate
against an employee "by dismissing him, or subjecting him to any other
detriment". As regards the phrase "any other detriment" the Court of
Appeal stated as follows:
"Racially to insult a coloured employee is not enough by itself,
even if that insult caused him or her distress; before the
employee can be said to have been subjected to some 'other
detriment' the Court or Tribunal must hold that by reason of the
act or acts complained of a reasonable worker would or might take
the view that he had thereby been disadvantaged in the
circumstances in which he had thereafter to work ....
.... even though the use of the insulting word in respect of the
appellant may have meant that she was being considered less
favourably, whether generally or in an employment context, than
others think that she can properly be said
to have been 'treated' less favourably by whomsoever used the
word, unless he intended her to overhear the conversation in
which it was used, or know or ought reasonably to have
anticipated that she was overhearing it, or knew or ought
reasonably to have anticipated that the person he was talking to
would pass the insult on or that the appellant would become aware
of it in some other way ...."
Without more concrete evidence of actual prejudice, the Court
of Appeal found that the applicant's complaint of racial
discrimination was unsubstantiated.
The applicant was apparently dismissed by her employers before
the Court of Appeal gave its judgment, but this was not an element of
the case before that Court.
COMPLAINTS
The applicant complains of the findings of the domestic courts
and of numerous alleged errors of law or fact, particularly, by the
Industrial Tribunal which first heard her case. She alleges that this
Tribunal conspired with her employer to prevent the course of justice;
it deliberately gave the wrong decision and agreed that she should be
used as cheap forced labour. As regards these aspects of her case, she
invokes Articles 3, 4 and 6 para. 1 of the Convention. The applicant
further claims that the Employment Appeal Tribunal came to a perverse
decision regarding the racial abuse she had suffered, in breach of
Articles 3, 6 para. 1 and 14 of the Convention. These breaches were
allegedly compounded by the Court of Appeal.
THE LAW
1. The applicant has complained of racial discrimination during
her employment with a private company. This complaint was rejected by
various industrial relations courts, for although it was acknowledged
that the applicant may have overheard a conversation in which she was
insultingly referred to as a "wog", this was not considered, along
with her other allegations, to have occasioned her any significant
detriment in her work.
However, the applicant complains that the domestic courts, in
rejecting her complaint of racial discrimination, perpetrated breaches
of Articles 3, 4, 6 para. 1 and 14 (Art. 3, 4, 6-1, 14) of the Convention.
Article 3 (Art. 3) of the Convention prohibits, inter alia, degrading
treatment; Article 4 (Art. 4) prohibits forced labour; Article 6 para. 1
(Art. 6-1) ensures a fair hearing in the determination of civil rights and
obligations before an impartial tribunal and Article 14 (Art. 14) prohibits
discrimination in the securement of Convention rights and freedoms.
The Commission notes that the applicant's complaints under Articles 3,
4 and 14 (Art. 3, 4, 14) of the Convention concern principally her private
employer, which complaints the Commission is unable to examine by virtue of its
competence ratione personæ. However, English domestic law has provided
protection from racial discrimination and abusive conditions of employment
under the Race Relations Act 1976 and substantial employment protection
legislation. Enforcement of this protection for employees is ensured by
specialised courts, namely Industrial Tribunals and Employment Appeal
Tribunals, followed by the other normal channels of appeal to the Court of
Appeal and the House of Lords. In this respect the British Government has
taken positive steps to protect persons within its jurisdiction from possible
degrading treatment through discrimination, and from forced labour.
The Commission finds that there is no evidence to substantiate
the applicant's allegation that the domestic courts conspired with her
employer or themselves perpetrated breaches of Articles 3, 4 and 14 (Art. 3, 4,
14) of the Convention. This aspect of the case is, therefore, manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The remaining question in this case is whether in respect of
the applicant's civil claim against her employer, in which she had
alleged racial discrimination, degrading treatment and forced labour,
the domestic courts ensured her right to a fair hearing before an
impartial tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
In this context the Commission observes the applicant's claims
that the domestic courts gave perverse and wrong decisions, committing
numerous errors of law or fact. However the Commission is not
competent to examine such allegations except when it considers that
such errors might have involved a possible violation of the Convention.
The Commission finds no evidence of failure by the industrial
relations courts in question to allow the applicant every opportunity
to argue her case; nor is there any evidence of their partiality. In
these circumstances the Commission concludes that the case discloses
no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this aspect of the application must also be rejected
as being manifestly ill-founded, within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)