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AS TO THE ADMISSIBILITY OF

Application No. 20435/92

by R.G.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 10 March 1992 by

R.G. against the United Kingdom and registered on 4 August 1992 under

file No. 20435/92;

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 United Kingdom citizen born in 1948. He is

an industrial worker at present unemployed. Before the Commission he

is represented by Mr. P. Diamond, a non-practising barrister, who lives

in London.

On 2 October 1991 the Industrial Tribunal accepted the

applicant's allegation that he had been unfairly dismissed by his

employer. The Industrial Tribunal accepted that that, although

the applicant's contract referred to working overtime "when the

workload makes this necessary", the gradual build-up of overtime to a

position where the applicant was required to work for 7 days a week for

a period of between 9 and 12 weeks a year was not lawful. In the

alternative, the Industrial Tribunal considered that the order to work

such hours was not reasonable. In the further alternative, the

Industrial Tribunal found that it was not reasonable to dismiss the

applicant for refusing to obey instructions to work such hours. The

applicant subsequently received a sum of £12,139 in an out-of-court

settlement. This sum exceeded any award which the Industrial Tribunal

could have made. The applicant had not requested re-instatement.

The applicant has since found work with the University of

Cambridge.

COMPLAINTS

The applicant alleges violation of Articles 1, 3, 4, 8, 9 and 13

of the Convention.

The applicant considers that his working hours of up to 84 hours

per week on site and the consequent destruction of his social and

family life and violation of his personality in a systematic fashion

by his employers amount to a standard of conduct unacceptable among the

civilised nations of Europe. He considers that such treatment was

inhuman and degrading, and that the United Kingdom has either

encouraged or adopted a position of "official tolerance".

In connection with Article 4 of the Convention, the applicant

considers that his employment requirements were so unreasonable that

Article 4 para. 2 of the Convention was breached.

Under Article 8 of the Convention the applicant considers that

his right to respect for private and family life and his home has been

violated because the United Kingdom has not enacted the necessary

statutory protection or ensured that such rights are respected by

alternative methods. He refers to the importance of a rest day, and,

in particular, to the importance of this rest day being Sunday wherever

possible, as it was the only day on which the applicant could be with

his family. He considers that Article 8 imposes a positive obligation

on the United Kingdom Government "to ensure that, in general, citizens

can exercise their custom and rights in ensuring that Sunday remains

a day when social relations have primacy over commercial ones." The

applicant contends that he remains a victim of a violation of these

rights as he is not protected at all by the Employment Protection

(Consolidation) Act 1978 because of a two-year qualification period.

Under Article 9 of the Convention, the applicant, a practising

Christian, underlines that the requirements to work every Sunday and

the continuing threat of regular Sunday working due to United Kingdom

Government policies have resulted in a violation and the threat of a

continuing violation of Article 9 of the Convention. He considers that

the United Kingdom policy of introducing Sunday working and Sunday

trading can only result in the personal violation in the applicant's

case and mass violation of both Articles 8 and 9 of the Convention.

Under Article 13 of the Convention, the applicant considers that

the present state of United Kingdom law required him to bring

proceedings against his employer, and that this was an onerous task,

particularly in the absence of legal aid. He considers that it is

inappropriate to argue that his rights have been adequately protected

by the Industrial Tribunal's decision, as it is for the United Kingdom

Government to take measures adequately to secure his rights under the

Convention. He considers that his own individual rights and those of

others need protection collectively by statutory regulations and

effective enforcement by the State. Moreover, the qualifying period

for protection under the Employment Protection (Consolidation) Act 1978

strike at the root of statutory protection.

The applicant considers that the "effective remedy" is for the

United Kingdom Government to introduce legislation ensuring a weekly

rest day which should in principle be Sunday, and to introduce

legislation establishing maximum working hours.

THE LAW

1. The applicant alleges that the Convention has been violated in

various respects because of a requirement, found unlawful by the

Industrial Tribunal, that he work extremely long hours, including

Sundays, for a period of some 9 to 12 weeks per year.

The Commission notes that the applicant was vindicated before the

Industrial Tribunal in that it found that he should not have been

required to work such long hours, and that his dismissal for refusing

so to work was not reasonable. The applicant, who had not requested

re-instatement (which could have given rise to a larger award if the

employer had refused to accept the applicant), accepted £12,139 by way

of an out-of-court settlement.

The Commission recalls that States are not required to

incorporate the Convention into domestic law, but that the substance

of the rights and freedoms in the Convention must be secured under the

domestic legal order (cf. Eur. Court H.R., James and Others judgment

of 21 February 1986, Series A no. 98, p. 47, para. 84). The Commission

finds that the applicant was able to put to the Industrial Tribunal the

substance of his claims concerning the unreasonableness of his having

to work on Sundays, and that the Industrial Tribunal accepted the

substance of those claims. Although the sum which the applicant

received in his out-of-court settlement exceeded that which the

Industrial Tribunal could have awarded in respect solely of the unfair

dismissal, it did not exceed the sum which the applicant could have

received if he had requested reinstatement, if the employer had refused

this, and if a "special award" had been made in lieu of reinstatement.

Taking into account the conclusion of the Industrial Tribunal,

together with the sum the applicant received by way of settlement, the

Commission finds that he can no longer claim to be a victim of a

violation of the Convention by the United Kingdom in respect of the

hours he was required to work.

Accordingly, 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 also complains of the general state of the law

which, he contends, does not provide for any clear guidelines as to

working hours and rest days in the United Kingdom.

Although in certain circumstances the Convention organs have held

that a person may be directly affected by laws of which he complains

without there having been an individual measure of implementation (cf.

Eur. Court H.R., Norris judgment of 26 October 1988. Series A No.

142),the Commission cannot find in the present case any indication that

the applicant is so affected by the existence, or absence, of

legislation. In particular he has not submitted any information which

could lead the Commission to conclude that he is again at risk of

having to work long unsociable hours. It therefore concludes that he

cannot claim to be a victim of a violation of the Convention.

Accordingly, this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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G. v. THE UNITED KINGDOM

G. v. THE UNITED KINGDOM

LEXI