AS TO THE ADMISSIBILITY OF
Application No. 14327/88
by Dennis SIBSON
against the United Kingdom
The European Commission of Human Rights sitting in private
on 9 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 17 October 1988
by Dennis SIBSON against the United Kingdom and registered
on 28 October 1988 under file No. 14327/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to
- the Government's written submissions of 8 March 1990
and the applicant's written submissions of 20 August 1990;
- the oral submissions made by the parties at a hearing on
9 April 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1929 and resident
in Middleton. The facts of the case may be summarised as follows.
The applicant was employed by Courtaulds from November 1973 as
a heavy goods driver. On 24 July 1985, following an internal dispute,
the applicant resigned as a member of the T.G.W.U. (The Transport and
General Workers Union). He joined the United Road Transport Union
instead. Under the mistaken conviction that there was a "T.G.W.U.
closed shop agreement" at that depot, the drivers of the applicant's
place of work threatened to strike if the applicant was not moved
elsewhere or sacked. Courtaulds attempted unsuccessfully to resolve
the dispute but finally on 8 November 1985, the applicant was told
that he had the choice of rejoining the union or moving to work at the
Chadderton depot a mile away. The applicant refused these alternatives
and resigned from his job that day alleging constructive dismissal.
He considered that the conditions at the Chadderton depot would
have been less advantageous since, inter alia, he would have been
given a different lower-grade lorry and used for short runs rather
than long distance journeys, with a resulting reduction in income.
The applicant applied to the Industrial Tribunal. By a
decision dated 21 July 1986, the Tribunal held that he had been unfairly
dismissed. The Tribunal found that the proposal by Courtaulds to
transfer the applicant elsewhere in order to avoid an industrial
dispute was unreasonable and not for genuine operational reasons
and that the whole basis of the dismissal was the applicant's exercise
of his express right not to belong to a trade union.
Courtaulds appealed to the Employment Appeal Tribunal
which on 16 January 1987 dismissed its appeal. The Employment Appeal
Tribunal found that there was no implied term in the applicant's contract
which reasonably required the applicant to work at the Chadderton depot
and agreed with the Industrial Tribunal's conclusions.
Courtaulds appealed further to the Court of Appeal which on
25 March 1988 held that there was an implied term in the applicant's
contract that his employer could direct him to work at any place
within a reasonable daily reach of his home. Exercise of this right
was not dependent on the existence of "genuine operational reasons" as
held by the Industrial Tribunal. The Court held that Courtaulds were
therefore within their contractual rights in requiring the applicant
to transfer to a nearby depot, that there was no unfair or
constructive dismissal in these circumstances and that the applicant
must be considered as having resigned.
On 15 April 1988 the applicant applied for legal aid to appeal
to the House of Lords. On 30 June 1990 legal aid was granted for the
purpose of obtaining counsel's opinion on the merits of an appeal.
Counsel advised on 8 August 1988 however that the applicant would not
be granted leave to appeal. Further legal aid was accordingly
refused on 19 August 1988 in view of Counsel's opinion that there were
no reasonable prospects of success.
RELEVANT DOMESTIC LAW AND PRACTICE
Sections 23 and 24 of the Employment Protection
(Consolidation) Act 1978 ("the 1978 Act") provide, so far as relevant,
as follows:
"23 (1) ... every employee shall have the right not to
have action (short of dismissal) taken against him as an
individual by his employer for the purpose of -
(a) preventing or deterring him from being or seeking
to become a member of an independent trade union, or
penalising him for doing so; or
(b) preventing or deterring him from taking part in the
activities of an independent trade union at any
appropriate time, or penalising him for doing so; or
(c) compelling him to be or become a member of [any
union or of a particular trade union or of one of
a number of particular trade unions]
...
24 (1) An employee may present a complaint to an
industrial tribunal on the ground that action has been
taken against him by his emeployer in contravention of
Section 23."
Section 54 (1) of the the 1978 Act states that (subject to
exceptions not relevant to this case) "every employee shall have the
right not to be unfairly dismissed by his employer". Part V of the
1978 Act then details the nature of this right and the remedies
available for those who are unfairly dismissed: reinstatement,
re-engagement or compensation.
At the relevant time, Section 58 (1) (c) of the 1978 Act, as
amended by section 3 of the Employment Act 1982, provided that
"Subject to subsection (3), the dismissal of an employee
by an employer shall be regarded for the purposes of this
Part as having been unfair if the reason for it (or, if
more than one, the principal reason) was that the
employee - ...
(c) was not a member of any trade union, or of a
particular trade union, or of one of a number of
particular trade unions or had refused or proposed
to refuse to become or remain a member."
COMPLAINTS
The applicant complains of a violation of his right not to be
compelled to join a trade union. He invokes Article 11 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 October 1988 and
registered on 28 October 1988.
On 9 November 1989, the Commission decided to communicate the
application to the Government pursuant to Rule 42 para. 2 (b) of the
Commission's Rules of Procedure [former version] and to invite them to
submit written observations on the admissiblity and merits.
The Government's observations were submitted on 8 March 1990
after one extension in the time-limit and the applicant's observations
were submitted on 20 August 1990.
On 18 May 1990, the Commission granted legal aid to the
applicant.
On 3 December 1990, the Commission decided to invite the
parties to an oral hearing on the admissibility and merits of the
case. At the hearing, which was held on 9 April 1991, the parties
were represented as follows:
For the Government:
Mr. N.D. Parker Agent, Foreign and Commonwealth Office
Mr. J. Eadie Counsel
Mr. P. Kilgarriff Adviser, Department of Employment
Mr. P.A.L. Parker Adviser, Department of Employment
For the applicant:
Mr. J. Bowers Counsel
Mr. M. Beattie Solicitor, Messrs. Davies Arnold
Cooper
The applicant attended the hearing.
THE LAW
The applicant complains of being compelled to join a
trade union in violation of Article 11 (Art. 11) of the Convention.
Exhaustion of domestic remedies
The Government originally submitted that the applicant had
failed to exhaust the domestic remedies available to him, as required
by Article 26 (Art. 26) of the Convention, since he failed to appeal
from the Court of Appeal to the House of Lords. At the hearing, they
did not maintain this submission. They contended, in the light of the
prejudice, alleged by the applicant before the Convention organs, that
he would have suffered materially if transferred to the other depot,
that he should have made application under Section 24 of the 1978 Act,
alleging contravention of Section 23 of that Act.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).
Nor does an applicant need to exhaust remedies which would be a mere
repetition of remedies already exercised by him.
It is furthermore established that the burden of proving the
existence of available and sufficient domestic remedies lies upon
the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of
27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80,
Dec. 11.12.82, D.R. 30 p. 96, at p. 102).
The Commission recalls that in the present case the applicant
left his employment because he did not accept a transfer to the
Chadderton Depot. His contention was that he had been dismissed, and
he sought reinstatement. The natural and usual remedy in respect of
this claim was an application to the Industrial Tribunal that he had
been unfairly dismissed. An application alleging action short of
dismissal, apart from possibly weakening, in the eyes of the Tribunal,
his claim that he had been constructively dismissed, could not have
led to reinstatement.
The Commission accordingly finds that the application cannot
be declared inadmissible for non-exhaustion of domestic remedies.
Six months rule
The Government also submit that if the appeal to the House of
Lords were not considered an effective remedy in this case, the final
decision for the purposes of calculating the six months time-limit
imposed by Article 26 (Art. 26) of the Convention would be the
decision of the Court of Appeal of 25 March 1988. However the
application was introduced more than six months after that date on 17
October 1988. The applicant submits that the time-limit should run
from the date on which the prescribed time for leave to appeal to the
House of Lords expired, on which date the Court of Appeal decision
became final.
The Commission is unable to agree with either party. Appeals
to the House of Lords lie in cases considered to raise fundamental
issues of law of general public importance. The applicant took the
step of seeking legal aid and obtaining counsel's opinion as to the
prospects of appealing. Counsel's opinion revealed that there was no
prospect of gaining leave to appeal and legal aid was refused. The
Commission considers that these are special circumstances which can be
taken into account in applying the six months time-limit. In this
case therefore, the Commission finds that the six months time-limit
runs from the date on which it became apparent that an appeal to the
House of Lords was no longer feasible, namely, the decision of
19 August 1988, the date of the decision refusing legal aid on the
basis of counsel's opinion.
Consequently, as the application was introduced within six
months from that date, it cannot be rejected for failure to comply
with Article 26 (Art. 26) of the Convention.
Article 11 (Art. 11) of the Convention
Article 11 (Art. 11) of the Convention reads insofar as relevant:
"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.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others..."
The applicant submits that the action taken by his employers
in requiring him to move to another depot or join the T.G.W.U.
was a form of compulsion contrary to his rights under Article 11
(Art. 11) of the Convention for which he should have been afforded
protection by the Courts.
The Government submit that any compulsion on the applicant was
insufficiently serious to amount to a breach of the positive
obligations arising under Article 11 (Art. 11) of the Convention, and
that the legislative framework sufficiently protected the applicant's
position on the facts of the case.
The Commission considers that the application raises difficult
questions of fact and law which are of such complexity that their
determination should depend on an examination on the merits. The
application cannot therefore be regarded as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
No other grounds for declaring the application inadmissible
have been established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy