AS TO THE ADMISSIBILITY OF
Application No. 22393/93
by Jack ISAACS
against the United Kingdom
The European Commission of Human Rights sitting in private on
1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 February 1993
by Jack ISAACS against the United Kingdom and registered on
29 July 1993 under file No. 22393/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1946 and resident in
London. The facts as submitted by the applicant may be summarised as
follows.
On 1 April 1991, the applicant took up employment as a warder at
the National Army Museum.
On 15 November 1992, a robbery took place at the museum in which
his employers suspected that he was implicated. The applicant was
questioned by the police but no charges were ever brought.
The applicant was suspended from his duties on 26 November 1992.
Following a disciplinary hearing on 12 January 1993, the applicant was
dismissed. He was informed that the ground for the dismissal was that
in light of information received from the police and the museum's own
investigation he was found to be implicated in the robbery, which
amounted to gross misconduct and a fundamental breach of his contract
of employment.
The applicant believed that the real reason for his dismissal was
his activity as officer of a trade union NUCPS. An opinion dated
17 March 1993 by counsel gave the view however that there was no
evidence to support such a claim under section 153 of the Trades Union
(Law Reform) Act 1992 which would be highly unlikely to succeed. He was
also informed that since he had been employed for less than 2 years he
would be unable pursuant to the provisions of the Employment Protection
(Consolidation) Act to bring proceedings for unfair dismissal on other
grounds.
COMPLAINTS
The applicant complains of being dismissed by means of an
allegation of a criminal charge in which process his employers refused
to supply him with documents or witnesses and by which he was found
guilty without due process of law. It also resulted in the loss of his
job and has affected his future employment prospects.
The applicant invokes Article 6 paras. 2 and 3 (d) of the
Convention.
THE LAW
1. The applicant complains that he was deprived of the presumption
of innocence and the opportunity to examine witnesses or evidence
relating to the accusation against him in the dismissal procedure.
Article 6 (Art. 6) of the Convention provides, as relevant, in
this case:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law....
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
...
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him..."
The Commission recalls that the applicant was dismissed by his
employer for gross misconduct and fundamental breach of contract,
following a disciplinary hearing, on the basis that it was considered
that he was implicated in a robbery. The Commission considers that
dismissal for suspicion of criminal offences by a state employer does
not involve the determination of a criminal charge and is not against
the principle of the presumption of innocence, the matter relating to
the employment and contractual sphere and not to the context of actual
criminal proceedings (No. 11882/85, Dec. 7.10.87, D.R. 54 p.162).
The Commission concludes that these complaints do not fall within
the scope of Article 6 para. 1 (Art. 6-1) of the Convention. It follows
that they are incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Insofar as it is implicit in the applicant's complaints that he
was unable to challenge his dismissal, the Commission has examined
whether he has been denied access to court in relation to the
determination of any civil rights or obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see above).
The Commission recalls that the applicant considered that his
dismissal was in fact motivated by his employer's disapproval of his
trade union activities. In this respect, the applicant could under the
applicable legislation have instituted proceedings before the
Industrial Tribunal. While counsel was of the opinion that a claim was
not likely to succeed for reasons of lack of evidence, this cannot be
considered as thereby depriving him of access to court.
The Commission further notes that the applicant was unable to
institute proceedings before the Industrial Tribunal alleging that his
dismissal was unfair for any other reason since the provisions of the
Employment Protection (Consolidation) Act 1978 which afford a right not
to be unfairly dismissed only apply to be persons who have been
employed for a period exceeding 2 years. The Commission recalls however
that Article 6 para. 1 (Art. 6-1) cannot be interpreted as imposing
requirements as to the content of the substantive law of Contracting
States (see eg. Eur. Court H.R. Lithgow and others judgment of 8 July
1986, Series A no. 102, p. 70 para. 192). In particular it cannot be
construed as providing employment rights where the domestic law does
not do so (see eg. No. 15084/89, Dec. 2.10.89, unpublished). In these
circumstances, the Commission finds that the applicant did not enjoy
a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention.
It follows that this aspect of the application is incompatible
ratione materiae also with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy