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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)

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TODD v. UNITED KINGDOM

TODD v. UNITED KINGDOM

LEXI