Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12237/86

by Maria De Souza

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

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 13 January 1986

by Maria De Souza against the United Kingdom and registered on

24 June 1986 under file N° 12237/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1939 in

Kenya. She is a secretary/personal assistant by profession and

resides in Basingstoke, England. She is represented before the

Commission by Mr A.P. Fishleigh, solicitor with Messrs Snow and

Bispham, Basingstoke.

The facts as submitted by the applicant may be summarised as

follows:

The application arises out of the applicant's complaint to an

Industrial Tribunal of racial discrimination, contrary to Section 4 of

the Race Relations Act 1976 (the 1976 Act), by her employer.

The applicant, a coloured woman, was employed without any work

problems from 4 January 1977 with a private company. After some five

years she reached the top of her salary scale in that grade.

In January 1982 a work reorganisation required her to work for

two rather than one of the firm's managers as she had done previously.

Her wage was not increased. This made her feel that she was being

discriminated against on racial grounds. Moreover she was no longer

invited to the staff Christmas lunch and she overheard one of the

managers tell a clerk to give some typing to "the wog", meaning the

applicant. ("Wog" is a term of abuse regarding coloured people.)

The Industrial Tribunal, and, on appeal, the Employment Appeal

Tribunal and the Court of Appeal, found that the applicant had not

suffered racial discrimination contrary to the 1976 Act. In the final

decision of the Court of Appeal on 19 December 1985 it was held that

the work reorganisation did not affect the applicant's workload and

that she received no increase in her salary because she had already

reached the top of her salary scale in her grade. Section 4 (2)(c) of

the 1976 Act makes it unlawful for any employer to discriminate

against an employee "by dismissing him, or subjecting him to any other

detriment". As regards the phrase "any other detriment" the Court of

Appeal stated as follows:

"Racially to insult a coloured employee is not enough by itself,

even if that insult caused him or her distress; before the

employee can be said to have been subjected to some 'other

detriment' the Court or Tribunal must hold that by reason of the

act or acts complained of a reasonable worker would or might take

the view that he had thereby been disadvantaged in the

circumstances in which he had thereafter to work ....

.... even though the use of the insulting word in respect of the

appellant may have meant that she was being considered less

favourably, whether generally or in an employment context, than

others think that she can properly be said

to have been 'treated' less favourably by whomsoever used the

word, unless he intended her to overhear the conversation in

which it was used, or know or ought reasonably to have

anticipated that she was overhearing it, or knew or ought

reasonably to have anticipated that the person he was talking to

would pass the insult on or that the appellant would become aware

of it in some other way ...."

Without more concrete evidence of actual prejudice, the Court

of Appeal found that the applicant's complaint of racial

discrimination was unsubstantiated.

The applicant was apparently dismissed by her employers before

the Court of Appeal gave its judgment, but this was not an element of

the case before that Court.

COMPLAINTS

The applicant complains of the findings of the domestic courts

and of numerous alleged errors of law or fact, particularly, by the

Industrial Tribunal which first heard her case. She alleges that this

Tribunal conspired with her employer to prevent the course of justice;

it deliberately gave the wrong decision and agreed that she should be

used as cheap forced labour. As regards these aspects of her case, she

invokes Articles 3, 4 and 6 para. 1 of the Convention. The applicant

further claims that the Employment Appeal Tribunal came to a perverse

decision regarding the racial abuse she had suffered, in breach of

Articles 3, 6 para. 1 and 14 of the Convention. These breaches were

allegedly compounded by the Court of Appeal.

THE LAW

1. The applicant has complained of racial discrimination during

her employment with a private company. This complaint was rejected by

various industrial relations courts, for although it was acknowledged

that the applicant may have overheard a conversation in which she was

insultingly referred to as a "wog", this was not considered, along

with her other allegations, to have occasioned her any significant

detriment in her work.

However, the applicant complains that the domestic courts, in

rejecting her complaint of racial discrimination, perpetrated breaches

of Articles 3, 4, 6 para. 1 and 14 (Art. 3, 4, 6-1, 14) of the Convention.

Article 3 (Art. 3) of the Convention prohibits, inter alia, degrading

treatment; Article 4 (Art. 4) prohibits forced labour; Article 6 para. 1

(Art. 6-1) ensures a fair hearing in the determination of civil rights and

obligations before an impartial tribunal and Article 14 (Art. 14) prohibits

discrimination in the securement of Convention rights and freedoms.

The Commission notes that the applicant's complaints under Articles 3,

4 and 14 (Art. 3, 4, 14) of the Convention concern principally her private

employer, which complaints the Commission is unable to examine by virtue of its

competence ratione personæ. However, English domestic law has provided

protection from racial discrimination and abusive conditions of employment

under the Race Relations Act 1976 and substantial employment protection

legislation. Enforcement of this protection for employees is ensured by

specialised courts, namely Industrial Tribunals and Employment Appeal

Tribunals, followed by the other normal channels of appeal to the Court of

Appeal and the House of Lords. In this respect the British Government has

taken positive steps to protect persons within its jurisdiction from possible

degrading treatment through discrimination, and from forced labour.

The Commission finds that there is no evidence to substantiate

the applicant's allegation that the domestic courts conspired with her

employer or themselves perpetrated breaches of Articles 3, 4 and 14 (Art. 3, 4,

14) of the Convention. This aspect of the case is, therefore, manifestly

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

Convention.

2. The remaining question in this case is whether in respect of

the applicant's civil claim against her employer, in which she had

alleged racial discrimination, degrading treatment and forced labour,

the domestic courts ensured her right to a fair hearing before an

impartial tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

In this context the Commission observes the applicant's claims

that the domestic courts gave perverse and wrong decisions, committing

numerous errors of law or fact. However the Commission is not

competent to examine such allegations except when it considers that

such errors might have involved a possible violation of the Convention.

The Commission finds no evidence of failure by the industrial

relations courts in question to allow the applicant every opportunity

to argue her case; nor is there any evidence of their partiality. In

these circumstances the Commission concludes that the case discloses

no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this aspect of the application must also be rejected

as being manifestly ill-founded, within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DE SOUZA v. THE UNITED KINGDOM

DE SOUZA v. THE UNITED KINGDOM

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