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Application No. 11518/85

Gandharv Raj CHAUHAN

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 16 May 1990)

TABLE OF CONTENTS

Page

INTRODUCTION.............................................. 1

PART I: STATEMENT OF FACTS .......................... 3

PART II: SOLUTION REACHED .............................. 5

INTRODUCTION

1. This Report relates to Application No. 11518/85 introduced

against the United Kingdom by Mr. Gandharv Raj Chauhan on 4 August

1984 under Article 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms. The application was registered on

3 May 1985.

2. The applicant was represented in the proceedings before the

Commission by Messrs. Simmons, Muirhead and Burton, Solicitors,

London, and Mr. Geoffrey Robertson, Q.C., of counsel.

3. The Government of the United Kingdom were represented by

their Agent, Mr. M. C. Wood, Foreign and Commonwealth Office, London.

4. On 12 July 1988 the European Commission of Human Rights

declared the application admissible as regards the applicant's

complaints under Articles 9, 11 and 14 of the Convention.*

5. The Commission then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition

referred to it:

(a) it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties

an examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall at the same time place itself at the

disposal of the parties concerned with a view to securing a

friendly settlement of the matter on the basis of respect

for Human Rights as defined in this Convention."

6. The Commission found that the parties had reached a friendly

settlement of the case and on 16 May 1990 adopted this Report, which,

in accordance with Article 28 para. 2 of the Convention, is confined

to a brief statement of the facts and of the solution reached.

__________

* This decision is public and can be obtained from the

Commission's Secretary. The decision will be published in

the Commission's official publication entitled Decisions

and Reports.

__________

7. The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C. L. ROZAKIS

Mrs.J. LIDDY

Mr. L. LOUCAIDES

PART I

STATEMENT OF FACTS

8. The applicant is a citizen of the United Kingdom born in 1938

and is an electrician by profession. He resides in London.

9. The applicant had been employed as an electrician by the

Ford Motor Company since 1978. The company had, at that time, a union

membership agreement which required an employee to be a member of a

union. The applicant had previously been a member of the Transport

and General Workers' Union (TGWU) since 1976 but his membership had

lapsed. He then joined the Electrical, Electronics, Telecommunication

and Plumbing Union (EETPU) as required by the union membership

agreement at the beginning of his employment with the Ford Motor

Company. In April 1980 he allowed his membership of the EETPU to

lapse by failing to keep up his subscriptions. From that date he has

not been a member of any trade union. However, he continued to work

for the Ford Motor Company and it was not until three years later,

early in June 1983, that the fact of his lapsed union membership came

to light.

10. The applicant claimed that he was a devout orthodox Hindu

belonging to the Radhaswami sect. He explained that this sect divided

its religious activities into four stages and that he had progressed

to the third stage. He considered that the religious teaching at this

stage of his religion did not permit him to be a member of a trade

union. The applicant offered to pay to charity a sum equivalent to

his union dues.

11. The applicant was subsequently invited by the Employee

Relations Manager to appeal to an independent panel, as provided for

under the union membership agreement, in order to explain the reasons

for his refusal. He subsequently refused to have recourse to this

appeal procedure since he considered that the panel could not be

regarded as independent so long as any member of a trade union was

represented upon it.

12. The applicant was subsequently dismissed from his employment

on 21 October 1983.

13. The applicant then filed an application before the Industrial

Tribunal. He complained that his dismissal was unfair since he had

genuine objections on grounds of conscience justifying his refusal to

join a trade union in accordance with Section 58 (4) of the Employment

Protection (Consolidation) Act 1978 (as amended).

14. On 23 January 1984 the Industrial Tribunal rejected the

applicant's case, finding that he had not proved a genuine and

conscientious objection. Accordingly, his dismissal was fair under

the 1978 Act (as amended). The Tribunal was satisfied that the

Employee Relations Manager had explored the applicant's stated

religious objections to trade union membership and that he was

entitled to conclude that the applicant did not have a genuine

conscientious objection.

15. The applicant appealed against this decision to the Employment

Appeal Tribunal. This appeal was rejected on 17 December 1984.

He was advised by his lawyers that an appeal to the Court of Appeal

against this decision offered no prospects of success and would

involve him in substantial expense.

16. Before the Commission the applicant alleged that his dismissal

from employment because of his refusal to rejoin a trade union

constituted a breach of Article 11 para. 1 of the Convention which

contained, in his submission, a general right to choose not to be a

member of a trade union. He further complained of a breach of Article

11 read in conjunction with Article 9 of the Convention, since the

requirement to join a trade union was incompatible with his religious

beliefs. Finally he complained that he was a victim of discrimination

in the enjoyment of his rights under Articles 9 and 11 contrary to

Article 14 of the Convention in that he was required to join a trade

union irrespective of his religious beliefs and that he was required

to bear a heavier burden of proof before the Industrial Tribunal than

members of other more traditional faiths.

PART II

SOLUTION REACHED

17. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

18. Following an exchange of letters, the Secretary, accompanied

by a member of the Secretariat had separate discussions with the

parties in London on 23 February 1990 concerning the possibility of

reaching a friendly settlement. In the light of these discussions,

the parties agreed on the terms of the friendly settlement as set out

below.

19. By letter of 27 April 1990, the Agent of the Government stated

as follows:

"I have the honour to refer to the friendly settlement

negotiations which took place in London on 23 February 1990

and to inform you that, in the light of these discussions,

the Government propose a friendly settlement on the

following basis:

1. The Government will make an ex gratia payment to the

applicant of £40,000, payment to be made within 21 days of

the adoption of the Commission's Report.

2. The Government will also pay the applicant's legal costs

which have been actually incurred, necessarily incurred and

are reasonable as to quantum."

20. In a letter dated 27 April 1990, the applicant's solicitors

indicated as follows:

"We refer to the State Party's letter dated 27 April 1990

and have pleasure in notifying you that Mr Chauhan accepts

the terms of settlement."

21. The Commission, at its session on 16 May 1990, noted that the

parties had reached an agreement regarding the terms of a settlement.

The Commission further found, having regard to Article 28 para. 1 (b)

of the Convention and to the statements made by the parties, that a

friendly settlement had been secured on the basis of respect for human

rights as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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CHAUHAN v. THE UNITED KINGDOM

CHAUHAN v. THE UNITED KINGDOM

LEXI