AS TO THE ADMISSIBILITY OF
Application No. 16936/90
by Andrew TODD
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 November 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 7 April 1989 by
Andrew TODD against the United Kingdom and registered on 27 July 1990
under file No. 16936/90;
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 appicant is a British citizen, born in 1940, resident in
Lockerbie, Scotland. Until 1988 he was employed as a teacher.
The facts as submitted by the applicant and as disclosed by
the documents are as follows:
On 26 October 1981 the applicant began his employment as a
mathematics teacher at Annan Academy, a secondary school in
Dumfriesshire. In 1985 the applicant was an inpatient at a
psychiatric hospital, suffering from depression. In February 1988 the
applicant had further treatment for depression. In early 1988 a staff
meeting, at which the applicant was not present, voted by a majority
to shorten the lunch time break for pupils and teachers, and end the
school day earlier.
In May 1988 the applicant wrote to the Director of Education
at the local authority objecting to the changes. On 27 May 1988 he
wrote to the local newspaper, questioning the wisdom of the alteration
of the school timetable.
On 31 May 1988 the local authority replied to the applicant,
stating that it considered the applicant's objections "frivolous and
time wasting". On the same day, the head teacher at Annan Academy
reprimanded the applicant by a letter, headed "oral reprimand" for his
having written to the local newspaper without permission on matters to
which he had privileged access.
On 1 June 1988 the applicant wrote to the Director of
Education at the local authority, appealing against the reprimand. On
10 June 1988, at the local authority's request, the applicant attended
a meeting to discuss the matter. At the meeting the question of the
connection between the applicant's health record and his past actions
and the possibility of the applicant's retirement on health grounds
was raised. Another meeting was fixed for 20 June 1988 to discuss in
greater detail the best course of action.
Before that meeting the applicant wrote again to the local
newspaper questioning the alteration to the timetable.
At the meeting of 20 June 1988 the applicant was asked for
permission to approach his doctors for a medical report. He refused,
stating that he was fit to continue teaching. The local authority
insisted that under the applicant's contract of employment it was
entitled to order a medical examination.
Following the meeting of 20 June 1988 the applicant consulted
solicitors, who wrote to the Director of Education requesting
clarification. The Director's reply of 23 June 1988 stated that he
felt obliged to establish the health of the applicant given his past
history. Further if the examination revealed that the applicant had
no problems, disciplinary proceedings would be begun against the
applicant.
Following the letter, the applicant obtained three medical
reports, which all stated that he was fit to teach.
On 27 June 1988 the applicant's solicitor sought clarification
from the local authority of the reasons for the threatened
disciplinary proceedings. No reply was forthcoming. On 5 July 1988
the local authority wrote to the applicant's solicitors suggesting
early retirement on health grounds.
On 21 August 1988, after some disagreement with his solicitors
about the best course of action, the applicant wrote to the local
authority stating that he had been constructively dismissed from his
employment, by reason of the pressure put on him to retire on health
grounds.
On 16 November 1989 the Industrial Tribunal held that the oral
reprimand was not a disciplinary procedure. Further the local
authority had not constructively dismissed the applicant by offering
him early retirement on health grounds.
On 29 March 1990 the Employment Appeal Tribunal dismissed the
applicant's appeal against the decision of 16 November 1989.
COMPLAINTS
The applicant complains that the reprimand of 31 May 1988 is
an unjustified interference with his freedom of expression contrary to
Article 10 of the Convention. He also invokes Articles 8, 9 and 14 of
the Convention.
THE LAW
1. The applicant complains that an "oral reprimand" given to him
by the head teacher for having written to a local newspaper,
expressing disatisfaction with a change in the school timetable, and
the following suggestions to him, constitute an unjustified
interference with his freedom of expression, in violation of Article
10 (Art. 10) of the Convention.
The Commission recalls that in principle it is possible for a
disciplinary sanction, even if not resulting in loss of pay, promotion
or employment, to constitute an interference within the meaning of
Article 10 (Art. 10) of the Convention (see E. v. Switzerland,
No. 10279/83, Dec. 7.5.84, D.R. 38 p. 124).
The Commission notes that the "oral reprimand" of 31 May 1988
was not, and was not regarded as, a general disciplinary measure and
that no sanction was, ultimately, imposed on the applicant. Even
assuming that there has been an interference with the applicant's
Article 10 (Art. 10) rights, the Commission finds that both the "oral
reprimand" given the applicant and the Industrial Tribunal
proceedings were prescribed by law and that they pursued goals
acceptable under the Convention, namely protecting the reasonable
requirements of employers and the provision of a forum for
work-related disputes. Further, bearing in mind the Industrial
Tribunal's decision that the applicant had resigned, and that he had
therefore not been constructively dismissed, the Commission finds that
any such interference was proportionate to the goals pursued.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also alleged violation of Articles 8 (Art. 8),
9 (Art. 9) and 14 (Art. 14) of the Convention.
The Commission has examined these separate complaints as they
have been submitted by the applicant. However, after considering them
as a whole, the Commission finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention.
It follows that the remainder of the application is also
manifestly ill-founded 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy