FIRST SECTION

DECISION

Application no . 52962/11 Terence BROUGH against the United Kingdom

The European Court of Human Rights (First Section), sitting on 30 August 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Ledi Bianku, Kristina Pardalos, Paul Mahoney, Aleš Pejchal, Armen Harutyunyan, Pauliine Koskelo, judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 3 August 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by Liberty, who were granted leave to intervene as a third party ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Terence Brough, is a British national who was born in 1948 and lives in Liverpool. He is represented before the Court by Mr S. Cottingham of O.H. Parsons & Partners, a firm of solicitors practising in London.

2. The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The Consulting Association ’ s database

4. In February 2009 the Information Commissioner ’ s Office (“ICO”) uncovered a database managed by an organisation known as The Consulting Association (“TCA”). The database held details of the trade union membership and trade union activity of over three thousand industrial workers, predominantly from the construction sector.

5. In return for an annual fee, companies who subscribed to the database could access the workers ’ details and add information to it. The database was therefore used to “blacklist” workers. In other words, companies could use it to vet job applicants and refuse employment to those listed on it. The workers on the database were named, but the companies who provided or accessed the information were listed by code number. The ICO has identified and released some of the names of these companies but not all of them.

2. Impact of “blacklisting” on the applicant

6. The applicant is a bricklayer who has worked in the construction industry for over thirty years. During that time he was an active member of an independent trade union and between 1976 and 1982 he served as a union shop steward representing his fellow workers ’ interests vis-à-vis their employer and organising industrial action.

7. On 11 May 2009 the applicant discovered that his name was on the TCA database.

8. The first entry is dated 10 July 1985. It notes that on 3 March 1976 a company identified as “1194” reported the applicant to be a “militant troublemaker”. The same 1985 entry records that on 12 January 1982 another company identified only as “1158” also reported the applicant to be a “militant troublemaker”.

9. The next entry, which is also dated 10 July 1985, records that a company identified as “250” checked the applicant ’ s details and that “L5 informed company”.

10. Two further entries on 2 June 1988 and 12 July 1988 record that the applicant ’ s details were checked by companies identified as “7013/1” and “7051/9”.

11. The ICO was unable to identify the companies referred to as 250, 1158 and 1194. Nor could it confirm the identity of L5. However the two companies that checked the applicant ’ s details in 1988 were identified.

12. Between June and August 1988 the applicant had been out of work. During this time he had applied for jobs with both of the companies identified by the ICO. In both cases his application was unsuccessful.

13. There is no record of any contemporaneous complaints about the applicant ’ s work, professional performance or conduct.

3. Domestic proceedings

14. Following the ICO disclosure the applicant brought a claim against the two identified companies under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) on the ground that they had unlawfully refused to offer him employment because of his trade union activities and/or membership.

15. Both respondent companies submitted, inter alia , that the claim was brought out of time as the 1992 Act required all claims to be brought within three months of the date of the relevant incident, unless the limit was extended by the Employment Tribunal.

16 . The application was heard on 22 July 2010. At the hearing the respondents raised a further argument: that section 137 of the 1992 Act had only come into force on 16 October 1992 and, as such, the actions complained of had not been unlawful at the material time. The applicant ’ s representative conceded the point and the claim was struck out on that basis. The applicant was ordered to make a contribution towards the respondents ’ costs of GBP 1,288.

17. On 17 September 2010 the applicant sought leave to appeal against the order to the Employment Appeal Tribunal (“EAT”). In the application he alleged that there had been a violation of his rights under Article 11 of the Convention.

18 . The application for leave to appeal was refused on the papers on 9 February 2011. The judge held that:

“The argument in the Notice of Appeal was not raised before the Employment Tribunal and cannot therefore be raised on appeal.

In any event, the failure [if it be that] on the part of the Government to legislate to give effect to an Article 11 right could not give the [applicant] a cause of action against the Respondent.”

19 . The applicant did not pursue any further appeal, although the possibility did exist for a further oral hearing under Rule 3(10) of the EAT Rules.

B. Relevant domestic law and practice

1. Legislation prohibiting “blacklisting”

20. Limited protection was first introduced under section 1 of the Employment Act 1990 which made it unlawful to refuse a person employment on the grounds of their membership of a trade union. This provision was consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the relevant provisions of which came into force on 16 October 1992.

21. Under section 137 of the 1992 Act it is unlawful to refuse a person employment for reasons related to the fact that he or she is a member of a trade union. Pursuant to subsection (2) any person who alleges that he or she was unlawfully refused employment can complain to an Employment Tribunal. Section 140 of the 1992 Act allows the Employment Tribunal to order such a remedy as it considers “just and equitable”, including the payment of compensation or a recommendation to the respondent employer.

22. Under section 139 of the 199 2 Act a complaint under section 137 must be presented to the Employment Tribunal before the end of a period of three months from the date of the conduct to which the complaint relates. The Tribunal has a power under subsection (1)(b) to extend the period by any further period that it considers reasonable. This power may be exercised where the Tribunal is satisfied that it was not “reasonably practicable” for the claimant to present the complaint before the end of the three-month period.

2. The Employment Tribunal and the Human Rights Act 1998

23. Pursuant to section 7 of the Human Rights Act, a person can bring proceedings against a public authority for acting incompatibly with a Convention right. However, such proceedings cannot be brought in the Employment Tribunal. Moreover, the Tribunal does not have jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act. Nevertheless, pursuant to section 3 of the Human Rights Act the Tribunal is required “so far as possible” to read and give effect to primary legislation in a way which is compatible with Convention rights. Furthermore, it is required to take into account any judgment, decision or opinion of the Court insofar as it is relevant to the proceedings when determining a question which has arisen in connection with a Convention right (section 2 of the Human Rights Act), and it is unlawful for the Tribunal, as a public authority, to “act in a way which is incompatible with a Convention right” (section 6 of the Human Rights Act).

COMPLAINTS

24. In the applicant ’ s submission, the absence of legal protection against “blacklisting” violated Article 11 taken alone and/or in conjunction with Article 14 of the Convention. In particular, the applicant claims that the lack of protection, remedy or penalty represents an inhibition on the exercise of trade union rights under Article 11. He further contends that he has been treated differently from other, non-union workers on the basis of his activity within his trade union.

THE LAW

25. The Government submitted that the applicant had failed to exhaust domestic remedies, since he raised his Article 11 complaint for the first time on appeal to the Employment Appeal Tribunal, which had no jurisdiction to hear an argument not previously raised before the Employment Tribunal. Furthermore, the applicant ’ s Article 14 complaint had not been raised at any stage of the domestic proceedings.

26. The applicant, for his part, argued that raising Article 11 at first instance would not have afforded him an effective domestic remedy. On appeal, the judge had expressly stated that a failure on the part of the Government to legislate to give effect to Article 11 could not have given him a cause of action against the respondents, which were private companies. The applicant further contended that there had been no domestic remedy whatsoever available to him.

27. The rule of exhaustion of do mestic remedies in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. It normally requires that the complaints intended to be made at international level should have been aired before the appropriate domestic courts, at least in substance, in compliance with the formal requirements and time ‑ limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III; Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 89, 23 June 2015; Peacock v. the United Kingdom (dec.), no. 52335/12, § 32, 5 January 2016).

28. As stipulated in Akdivar and Others v. Turkey , 16 September 1996, §§ 66-67, Reports of Judgments and Decisions 1996 ‑ IV, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see also Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , § 71, 25 March 2014 ).

29. In the present case, the applicant ’ s Convention complaints were not raised either expressly or even in substance before the Employment Tribunal. Although he sought to raise the Article 11 complaint on appeal to the Employment Appeal Tribunal, it had no jurisdiction to hear a complaint not raised at first instance (see paragraph 18 above). Furthermore, the applicant did not pursue any further appeal against the decision of the Employment Appeal Tribunal, although the possibility did exist for a further oral hearing under Rule 3(10) of the EAT Rules (see paragraph 19 above). It cannot, therefore, be said that the applicant ’ s Convention complaints were “aired before the appropriate domestic courts ... in compliance with the formal requirements and time ‑ limits laid down in domestic law”.

30. The applicant will therefore have failed to exhaust domestic remedies unless it can be shown that the remedies available were not capable of affording him redress for his Convention complaints. In this regard, the Court notes that the Employment Tribunal did not have jurisdiction to hear a “freestanding” Article 11 complaint to the effect that the authorities had failed adequately to protect him against “blacklisting” (see paragraph 23 above). It is also true, as the Employment Appeal Tribunal noted, that Article 11 could not, by itself, have provided the applicant with a cause of action against the two private companies who, he alleged, had refused him employment on account of his trade union membership (see paragraph 18 above). However, the Employment Tribunal was required by virtue of section 3 of the Human Rights Act “so far as possible” to read and give effect to primary legislation in a way which was compatible with Convention rights (see paragraph 23 above). It would therefore have been open to the applicant to have argued before it that Article 11 (read alone or together with Article 14) required the 1992 Act to be interpreted as having retrospective effect so as to provide him with an effective remedy for his Convention complaint, but he did not do so. Instead, he conceded that the acts complained of were not unlawful at the material time and the case was struck out on that basis (see paragraph 16 above).

31. In light of the foregoing, the Court is not persuaded that the applicant did not have available an effective domestic remedy in respect of his Convention complaints.

32. However, even if the Court were to accept that no effective remedy existed under domestic law, it considers that the present application must still be declared inadmissible. Pursuant to Article 35 § 1 of the Convention, complaints must be lodged within six months of the date of the final domestic decision. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009). In the present case, the applicant discovered that his name was on the TCA database on 11 May 2009, but only lodged his application to this Court more than two years later, on 3 August 2011. Consequently, if, as he claims, he did not have an effective domestic remedy available to him, his complaints must be considered to have been lodged out of time.

33. It follows that the applicant ’ s complaints must be rejected pursuant to Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the application.

Done in English and notified in writing on 22 September 2016 .

             Renata Degener Mirjana Lazarova Trajkovska Deputy Registrar President