Lexploria

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)

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SIBSON v. THE UNITED KINGDOM

SIBSON v. THE UNITED KINGDOM

LEXI