Legal summary
January 2023
Hoppen and trade union of AB Amber Grid employees v. Lithuania - 976/20
Judgment 17.1.2023 [Section II]
Article 11
Article 11-1
Form and join trade unions
Legal framework and judicial review providing adequate safeguards against discriminatory dismissal of trade union leader on grounds of character, behaviour or working relationships: no violation
Article 14
Discrimination
Legal framework and judicial review providing adequate safeguards against discriminatory dismissal of trade union leader on grounds of character, behaviour or working relationships: no violation
Facts – The first applicant was employed at the company AB Amber Grid and was a member of the trade union of that company’s employees (the second applicant). Having obtained the consent of the State Labour Inspectorate (SLI), the company dismissed the first applicant “at the employer’s will”, on the basis of Article 59 of the Labour Code, for reasons relating to the employee’s character, behaviour at work, relations with colleagues and similar considerations. The first applicant, with the support of the second applicant, unsuccessfully challenged his dismissal before the domestic courts. In particular, the administrative courts found that the dismissal had been unrelated to his trade-union activities. Further, the civil courts were satisfied that the dismissal had been lawful and that the company had provided relevant and sufficient reasons for it.
Law – Article 14 in conjunction with Article 11 (the employee) and Article 11 taken alone (the trade union):
(i) Adequacy of the domestic legal framework – The possibility provided by the law for any employee, including members and leaders of a trade union, to be dismissed at the employer’s will, for reasons such as those covered by Article 59 of the Labour Code (such as his or her character, behaviour at work or relations with colleagues) could not be considered as inherently contravening the rights of trade unions and their members, as long as the domestic law and practice provided adequate safeguards against discrimination on the grounds of trade union membership. Be that as it may, the Court had no grounds to find that the fact that the first applicant’s dismissal had been based on that provision, constituted, in and of itself, a violation of the applicants’ Convention rights, or that it amounted to proof of discrimination on the grounds of trade union activities.
(ii) Conflict between the Labour Code and the Law on Trade Unions – Article 21 § 1 of the Law on Trade Unions required employers to obtain the consent of a trade union when dismissing one of its members, whereas Article 168 § 3 of the Labour Code required the consent of the SLI. The District Court had found that the second legal provision had to be applied because it did not exclude any category of employees from the scope of its application. The first legal provision also was not applicable to dismissal at the employer’s will. Taking note of the primacy of the Labour Code over conflicting legal instruments, the way in which the conflict between the two legal provisions had been resolved in the applicants’ case was not manifestly erroneous or arbitrary.
(iii) Whether a trade union’s consent must be required for the dismissal of one of its members – The Contracting States enjoyed a wide margin of appreciation as to how trade union freedom and the protection of the occupational interests of union members might be secured. The Court noted the wide variety of models existing in different States aimed at protecting employees from dismissal on the grounds of their trade union activities
Article 11 of the Convention could therefore not be interpreted as requiring the Contracting States to provide in their domestic law that a member or a leader of a trade union could not be dismissed unless that trade union granted its consent. No such requirement was stipulated by the relevant International Labour Organization (ILO) conventions. The lack of any such requirement under domestic law had not been in and of itself contrary to the applicants’ Convention rights.
(iv) The need to institute two sets of court proceedings – The fact that the various issues relating to the first applicant’s dismissal had been examined in two sets of domestic proceedings (administrative and civil) had not been per se incompatible with the requirements of the Convention, as long as it had not unnecessarily prolonged the proceedings and had not precluded the applicants’ main arguments from being duly examined by the courts. The duality of the proceedings as such could not be considered to be contrary to the requirements of the Convention.
(v) Effectiveness of the domestic proceedings –
- Administrative proceedings –
Procedure before the SLI – The applicants had not been accorded sufficient procedural guarantees to be able to effectively challenge the company’s request to dismiss the first applicant. Firstly, the SLI had dismissed their submissions as being based on “subjective perceptions” and lacking in evidence. However, the discrepancy between the text of the law and the reasoning of the SLI had resulted in a lack of clarity for the applicants with regard to the threshold that their submissions had been expected to meet. Secondly, the applicants’ arguments concerning alleged discrimination had been addressed in a cursory manner. Also, the SLI had admitted to not having any methodology for assessing whether the reasons given by the employer were actually related to the employee’s trade union activities. Lastly, the applicants had not been notified of the decision taken by the SLI, while timely notification of the decision was crucial in order for him to have a clear, practical and effective opportunity to challenge it.
Proceedings before the administrative courts – The role of the administrative courts had been limited to examining whether the first applicant’s trade union activities had been the decisive factor in the decision of the company to dismiss him and whether the company’s request had contained relevant reasons that had been unrelated to those activities. The administrative courts had thoroughly addressed the applicants’ main arguments concerning alleged discrimination and had provided relevant and sufficient reasons for rejecting them. In particular, they had taken into account the first applicant’s role in the collective bargaining process and the impact of his dismissal on that process; they had rejected the first applicant’s submission that he had never received any criticism of his work before he had joined the applicant union.
Cases in which the Court had previously found that applicants had established a prima facie case of anti-union discrimination had concerned a wide range of measures taken by the employer against multiple members of the trade union, including their reassignment to special work teams with limited opportunities, dismissals subsequently found to be unlawful by the courts, reductions in earnings, disciplinary sanctions and refusals to reinstate employees following court judgments (Danilenkov and Others v. Russia), or reduction of working hours and repeated attempts to dismiss them (Zakharova and Others v. Russia).
However, the Court was unable to find any indication of comparable reprisals taken by the company against members of the applicant union in the present case. Despite the first applicant’s dismissal, the collective bargaining had continued, and a new collective agreement had been reached. Furthermore, there were no grounds to find that the membership of the applicant union had shrunk dramatically. Nor was the Court able to accept that the resignation of several employees who had been members or leaders of the applicant union was in and of itself evidence of the employer’s reprisals, especially since there was no indication that any of them had lodged complaints against the company or that any of the dismissals had been found unlawful by the relevant authorities.
Neither the individual circumstances of the first applicant’s dismissal nor the company’s general attitude towards the applicant union and its members had been such that an independent observer could reasonably draw an inference that the first applicant’s trade union activities could have played a principal role in his employer’s decision to dismiss him. Therefore, the applicants had failed to establish a prima facie case of discrimination against the first applicant on the grounds of his trade union membership and related activities.
- Civil proceedings – Whether the dismissal was in accordance with the law – While Article 59 of the Labour Code was interpreted as excluding State enterprises from the scope of its application, the courts had held that unlike State enterprises, State-owned companies (such as the first applicant’s employer) had not been prevented by the Labour Code from dismissing employees under Article 59. That interpretation could not be considered arbitrary or manifestly unreasonable.
Whether the dismissal was justified – The courts had found that the company had provided concrete examples of situations in which the first applicant had failed to properly carry out certain tasks, which had been confirmed by testimony given by his supervisors and by email correspondence. The domestic courts had carried out an adequate assessment of the reasons provided by the company and their decisions had not been arbitrary or manifestly unreasonable. Moreover, procedural guarantees had been accorded to the applicants. Indeed, there was no indication that the domestic courts had failed to take into account any important evidence or that the applicants had not been given an adequate opportunity to present their case. Accordingly, the Court had no reason to doubt that in the civil proceedings there had been sufficient safeguards against any possible unjustified dismissal of the first applicant on the grounds of his trade union activities.
In sum, the Court had no reason to consider that the domestic legal framework had been inadequate to protect the applicants from the alleged discrimination on the grounds of trade union activities (the employee) or the alleged violation of the right to freedom of association (the trade union). As to the effectiveness of the domestic proceedings, although the procedure before the SLI had fallen short of the relevant Convention requirements, those shortcomings had been subsequently remedied by the courts, and in both administrative and civil proceedings the applicants had been accorded real and effective protection against the alleged violations of their rights.
Conclusion: no violation of Article 14 in conjunction with Article 11 (first applicant); no violation of Article 11 (second applicant) (unanimously).
(See also Danilenkov and Others v. Russia, 67336/01, 30 July 2009, Legal summary; Yakut Republican Trade-Union Federation v. Russia, 29582/09, 7 December 2021, Legal summary; Zakharova and Others v. Russia, 12736/10, 8 March 2022)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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