FOURTH SECTION

DECISION

Application no . 1278/11 Annalisa ROFFEY and O thers against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 May 2013 as a Chamber composed of:

Ineta Ziemele, President,

David Thór Björgvinsson,

Päivi Hirvelä,

George Nicolaou,

Paul Mahoney,

Krzysztof Wojtyczek,

Faris Vehabović, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 17 December 2010,

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

Having deliberated, decides as follows:

THE FACTS

1. The first four applicants are Ms Annalisa Roffey, Ms Sharon Owens, Mr Robert McCallum and Ms Elizabeth Malone, who were born in 1975, 1955, 1947 and 1956 respectively. They are all British nationals and, with the exception of the fourth applicant who has an address in the United States of America, are resident in the United Kingdom. The fifth applicant is UNITE the Union (“UNITE”), a trade union with an address in London. The applicants were represented before the Court by Mr S. Cottingham, a solicitor with the firm O.H. Parsons, London. They were advised by Mr J. Hendy QC, Mr P. Edwards and Mr M. Ford, barristers practising in London.

2. The United Kingdom Government (“the Government”) were represented by their Agents, Mr D. Walton and Ms R. Tomlinson 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.

4. The first four applicants are employed as cabin crew by British Airways. They are members of UNITE, which represents the majority of British Airways cabin crew and is recognised by the company for the purposes of collective bargaining. The company and the union have concluded collective agreements on various aspects of staff working conditions, including the number of cabin crew assigned to flights, which is the issue that forms the background to the present application.

5. In 2009, faced with significant financial losses, British Airways sought to reduce its operating costs by various means. One of these was to reduce the number of cabin crew on flights operating out of Heathrow airport, bringing them into line with those used on British Airways flights out of Gatwick airport. Following several months of negotiations on this proposal, which failed to produce an agreement, the company decided to introduce the change unilaterally, starting in November 2009. A number of cabin crew, including the fourth applicant Ms Malone, attempted to sue British Airways for breach of contract, arguing that flight staffing levels constituted a condition of employment that was implicitly incorporated into their individual contracts of employment. The claim was rejected by a decision of the High Court of 19 February 2010 ( Malone and Others v. British Airways , [2010] EWHC 302 (QB)). The applicants appealed. Their appeal was dismissed on 3 November 2010, the Court of Appeal concluding that the relevant terms of the collective agreement were intended to be binding only in honour. The company ’ s actions were therefore not in breach of contract ( Malone and Ors v. British Airways Plc [2010] EWCA Civ 1225).

6. UNITE organised a ballot of its members on the taking of industrial action over the Christmas period 2009 to protest against the company ’ s departure from the terms of the collective agreement. Its members approved the strike by a very large majority. On 17 December 2009 British Airways obtained an injunction to prevent the strike going ahead, on the ground that UNITE had not observed the statutory requirements for a valid ballot since it had included in it members who would no longer be employees of the company by the date of the strike ( British Airways Plc v. UNITE the Union [2009] EWHC 3541 (QB)).

7. UNITE organised a second ballot of its members between 25 January and 22 February 2010 on the taking of industrial action, which was again supported by a large majority. Before this second ballot was conducted, British Airways informed staff that those taking part in industrial action would permanently lose the special non-contractual travel benefits they enjoyed as employees of the airline. There were two strikes by cabin crew in March 2010 (20-22 and 27-30), with approximately 5,000 employees taking part. British Airways contacted all of these between 13 April and 10 May 2010 to notify them that, as previously indicated, their travel benefits were permanently revoked.

8. UNITE gave notice of further strike action, beginning 18 May 2010. On 17 May, British Airways obtained an injunction to restrain the union, this time on the ground that the latter had not complied with its statutory duty to fully inform its members of the result of the second ballot ( British Airways Plc v. UNITE the Union [2010] EWHC 1210 (QB)). The injunction was discharged by the Court of Appeal three days later ( British Airways v. UNITE the Union [2010] EWCA Civ 669). There were further strikes at the end of May and in early June 2010.

9. A number of cabin crew, including the third applicant Mr McCallum and the fourth applicant Ms Malone, issued High Court proceedings against British Airways in October 2010 claiming that the withdrawal of travel benefits was unlawful and seeking injunctive relief (the “ McCallum proceedings”). British Airways entered its defence to the claim in December 2010. The case was withdrawn in August 2011, however, in light of the settlement reached by British Airways and UNITE in May 2011. The settlement included the restoration of travel benefits to cabin crew who had gone on strike, although this was not fully retroactive. The withdrawal of these benefits for the period April to October 2010 was not reversed. Full eligibility was restored for the employees concerned with effect from 1 July 2011.

10. Another group of cabin crew brought proceedings before an employment tribunal, arguing that the removal of travel benefits was indirectly discriminatory on grounds of nationality, since it imposed a greater disadvantage on employees resid ent abroad, who were mainly non ‑ UK nationals ( Russo v. British Airways Plc , Reading Employment Tribunal, 25 July 2012). The tribunal dismissed their claim, finding that the removal of travel benefits in the circumstances of the case was a proportionate means of achieving a legitimate end and therefore justified. Since none of the applicants was a party to that case, being all United Kingdom nationals, the Court does not consider it relevant to the present application.

B. Relevant domestic law

11. The parties referred to a variety of statutory provisions determining the permitted legal consequences for an employee who takes “official” industrial action, i.e. action that is authorised by a trade union and has been organised in conformity with all of the statutory criteria. Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 protects workers from dismissal in such circumstances. Domestic legislation does not in terms prevent an employer from applying lesser sanctions to workers who have participated in official industrial action.

The Government referred to the Blacklists Regulations 2010, adopted under the Employment Relations Act 1999. These prohibit the practice of blacklisting in the following terms:

“3.—(1) Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list.

(2) A “prohibited list” is a list which—

(a)contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and .

(b)is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers. .

(3) “Discrimination” means treating a person less favourably than another on grounds of trade union membership or trade union activities.

(4) In these Regulations references to membership of a trade union include references to—

(a)membership of a particular branch or section of a trade union, and .

(b)membership of one of a number of particular branches or sections of a trade union; .

and references to taking part in the activities of a trade union have a corresponding meaning.”

COMPLAINT

12. The applicants complained that the loss of travel benefits constituted an unjustified interference with their right to freedom of association, in violation of Article 11 of the Convention.

THE LAW

13. The Government argued that all the applicants lacked victim status. The first four applicants could not be considered victims of a violation of the Convention as they had been deprived of their travel benefits for a limited period of time only, having regained them in full by mid-2011. Although there had been no official acknowledgment of any breach of the applicants ’ rights under the Convention, this was because of their decision to discontinue the proceedings initiated in the High Court. As for the applicant trade union, the Government argued that the facts of the case did not disclose any direct or independent impact on its rights under Article 11. It was not sufficient to claim that the union was a victim as it lacked the means to protect its members against the measure taken by British Airways. Such protection could have been achieved by the McCallum proceedings, which was a representative action taken on behalf of the whole class of cabin crew concerned.

14. The very fact that the McCallum proceedings had been instituted showed that, at that time, the claimants believed that effective remedies were available, even if they now adopted the contrary view before the Court. B y discontinuing those proceedings, the applicants had failed to exhaust domestic remedies. They had deprived the domestic courts of the possibility of remedying any breach of the Convention. Although there was no express right not to suffer detriment by reason of having taken part in lawful strike action, the domestic legal framework provided for several effective remedies and protections, which the Government enumerated as follows.

15. First, an employer could only deduct pay in relation to normal working hours actually lost to industrial action. It was forbidden to deduct pay in advance of industrial action as a means of dissuasion, or to impose a pay deduction regarding work performed after the strike, as a means of retaliation (sections 13 and 14 of the Employment Rights Act, 1996).

16. Second, the Blacklists Regulations prohibited any discrimination on the grounds of trade union membership or participation in trade union activities, and, where this was contravened, afforded a remedy to any person who suffered detriment. They also provided for an action for breach of statutory duty, conferring on the courts the power to award damages and to restrain or prevent any contravention of the Regulations. The McCallum claimants had in fact relied on the Regulations in their particulars of claim, and there was no reason to consider them ineffective in the circumstances of the case.

17. Third, it was open to the applicants to assert their contractual rights against their employer. It was not permissible for an employer unilaterally to vary any contractual right or benefit of an employee who had taken part in industrial action. Furthermore, the employer was bound by an implied contractual term of mutual trust and confidence. Any action calculated or likely to destroy such trust and confidence would be a breach of contract and actionable as such. The McCallum claimants had included this argument too in their particulars of claim.

18. A fourth possibility was the prohibition on indirect discrimination, which was the basis of the Russo case.

19. Fifth, it was open to the applicants to sue British Airways for failure to observe its contractual disciplinary procedure, a ground that the McCallum claim had in fact raised.

20. A sixth possibility, although of less relevance to the facts of the present case, was the statutory protection against detriment as a result of trade union membership or activities outside of normal working hours (sections 146 and 152 of the Trade Union and Labour Relations (consolidation) Act, 1992).

21. Lastly, the Government recalled that the domestic courts were required by section 3 of the Human Rights Act to read and give effect to primary and subordinate legislation in a manner compatible with Convention rights.

22. The applicants asserted that their victim status was not affected by the settlement reached with British Airways, since the detriment they had suffered had not been fully remedied. Furthermore, that settlement had not at all redressed the interference by the company with UNITE ’ s exercise of its right to freedom of association. They further rejected the Government ’ s arguments concerning possible domestic remedies. They noted that the suggested remedies were applicable to individual employees only, not to trade unions. There was therefore no remedy available to UNITE for the injury it had sustained, nor did it have any distinct right of legal action in defence of its members. In domestic law, explicit statutory protection for workers who took part in industrial action was limited to a prohibition on dismissal. Lesser forms of detriment, such as in the present case, were not prohibited. The various remedies referred to the Government were merely speculative, as shown by the complete absence of any practical examples.

23. As regards the grounds relied on in the McCallum proceedings, the applicants submitted that these had no realistic prospects of success, in light of the “robust defence” entered by British Airways. The argument based on the Blacklists Regulations could not have succeeded as British Airways had denied the existence of a “prohibited list” and the claimants had had no evidence to the contrary. Nor would the argument about a failure to observe the company ’ s disciplinary procedure have been accepted because, as the company argued, the withdrawal of travel benefits was not a disciplinary measure. In any event, even had the procedure been followed, it could not have led to a different outcome for the applicants, since the fact of their participation in the strikes was not in doubt. It could not therefore be considered an effective remedy. The third ground was also weak, since the threshold for establishing that an employer had breached the implied term of trust and confidence was very high. British Airways had advanced very strong counter-arguments, essentially the same as those accepted by the Employment Tribunal in the Russo case. The purpose of the McCallum proceedings, according to the applicants, had been simply to increase the pressure on British Airways to reach a settlement. The proceedings had had no reasonable prospect of success.

(i) Whether the applicants have victim status

24. The Court will examine first the Government ’ s objection concerning the applicants ’ victim status. Regarding the first four applicants, the Court recalls the conditions established in its case-law for the loss of victim status, namely that “the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” ( Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V ). I t considers that neither condition has been fulfilled as regards the first four applicants. It therefore rejects the Government ’ s preliminary objection insofar as it relates to them.

25. Concerning the victim status of the applicant trade union, the Court observes that there is no doubt that Article 11 confers rights on trade unions in their own right as well as on their individual members. As it has previously stated, the words “for the protection of his interests” in Article 11 of the Convention cannot be construed as meaning that only individuals and not trade unions may make a complaint under this provision ( Federation of Offshore Workers ’ Trade Unions and Others v. Norway (dec.), no. 38190/97 , ECHR 2002 ‑ VI). In practice, applications relating to trade union freedom have been brought either by trade unions, by trade union members, or, as here, a combination of the two. The parties referred in their submissions to the case Wilson, National Union of Journalists and Others v. the United Kingdom , nos. 30668/96, 30671/96 and 30678/96, ECHR 2002 ‑ V. The applicants noted that the Court stated expressly in that case that the violation of Article 11 concerned both the individual applicants and the applicant trade unions (at § 48). For the Government, that case could be distinguished from the present one, as there had been direct impact on the trade unions concerned. There had been no such impact on UNITE.

(ii) Whether domestic remedies have been exhausted

27. The Court will next examine the Government ’ s objection that the applicants have failed to exhaust domestic remedies. It recalls that, according to its case-law, the Government have the burden of proving that an effective remedy was available to the applicants. Any such remedy must be sufficiently certain in law and practice , as confirmed by relevant case ‑ law, and be capable of providing redress for the applicants ’ complaints (see among many other authorities Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009).

28. The Government referred to seven potential grounds that the applicants could have invoked before the domestic courts. Some of these appear to be of little relevance to the circumstances of the case, however. Thus, while workers are afforded a degree of protection against pay deductions (see § 15 above), no such measure was applied to the applicants. Nor are the Government ’ s remarks about unilateral changes to employment contracts apposite in the circumstances (see § 17 above). It does not appear to the Court that any argument based on indirect discrimination was available to the applicants (see § 18 above). In referring to the statutory protection against detriment on account of trade union activities outside of working hours, the Government recognised that this was scarcely applicable to the present case (see § 20 above). Finally, the Government referred to section 3 of the Human Rights Act, but without explaining how exactly this might have availed the applicants in seeking to undo the claimed interference with their right to freedom of association.

29. Three of the grounds were raised in the McCallum proceedings, to which two of the present applicants were pa rties (see paragraph 9 above). The fact of instituting these domestic proceedings should ordinarily be taken as signifying that, at least at that moment in time, these applicants considered that a potentially effective remedy was available to them. To then discontinue the proceedings as they did, thereby depriving the national courts of the opportunity of ruling on the subject-matter of complaint ultimately submitted to this Court, would normally constitute a failure to comply with the duty to exhaust domestic remedies, leading to rejection of the complaint as inadmissible. However, the applicants in their pleadings to this Court now cast doubt on the three grounds relied on in the McCallum proceedings. In such circumstances, while it is not for this Court to settle disputed points of domestic law, it must be satisfied that the respondent Government have met the burden of proof incumbent on them in relation to the effectiveness of the remedies they invoke.

30. From the Government ’ s submissions, it appears that they consider the Blacklists Regulations to be the most relevant remedy, although they observed that since these Regulations were enacted relatively recently there is as yet little case-law to give guidance on their application. T he applicants, on the other hand, have adduced cogent arguments raising doubts as to the applicability of the Regulations in the circumstances of the present case, in that it would have been necessary for the national courts to determine whether British Airways had in fact compiled a “list” within the meaning of the Regulations and, if so, whether this “list” had been compiled for the purpose of discriminating against the applicants, these being issues that the company was prepared to contest.

31. The applicants also cast doubt on the other two grounds (see §§ 17 and 19 above), drawn from contract law, describing them as “ingenious and speculative”. The Court cannot but note the absence of examples from legal practice to support the Government ’ s assertion that the applicants should have exhausted these remedies.

32. In the circumstances, it is not necessary to reach a firm conclusion on the Government ’ s preliminary objection under this head and, in particular, to decide this contested issue between the parties as to the potential effectiveness of the three grounds relied on in the domestic proceedings that were discontinued. Even if it were to accept the applicants ’ arguments that there were no effective domestic remedies available for their complaint, it necessarily follows, for the reason given below, that the application is inadmissible on the separate ground of non-compliance with the six-month time-limit laid down under Article 35§1 of the Convention.

(iii) Compliance with the six-month time-limit

33. The Court recalls that this rule marks out the temporal limits of its supervision, and signals to both applicants and States the period beyond which such supervision is no longer possible. Thus, the fact that the Government did not advert to the issue in their submissions does not allow the Court to set the rule aside (see Walker v. the United Kingdom (dec.), no. 34979/97 , ECHR 2000 ‑ I; Belaousof and Others v. Greece , no. 66296/01, § 38, 27 May 2004).

35. The Court considers that this case can be clearly distinguished from those in which another approach to the six-month rule was deemed justified. It refers here to situations in which an applicant has made use of a domestic remedy and only subsequently becomes aware of circumstances rendering that remedy ineffective for their Convention complaint. The Court found it appropriate in such cases to take as the starting point of the six-month period the date on which the applicant became aware, or should have become aware, of those circumstances (see, for example, Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99 , 4 June 2001 ).

36. For the Court the present case stands comparison with those in which, as the present applicants have argued in relation to the Government ’ s objection of non-exhaustion of domestic remedies (see §§ 22-23 above), it was clear from the outset that the applicant had no effective remedy. In such circumstances, the six-month period runs from the date on which the act complained of occurred ( Dennis and Others v. the United Kingdom (dec.), recently cited in El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09 , § 136, 13 December 2012 ). It is true that at the outset the applicants did not take the firm view they now hold regarding the absence of effective domestic remedies, stating in their application form that they were “exploring whether they have contractual rights to seek a remedy in relation to the imposition of the penalty”. However, they subsequently stated, in correspondence with the Court and in their submissions in reply to the Government, that the McCallum proceedings served only to apply pressure to British Airways into reaching a settlement with UNITE. Once this had been achieved, those proceedings were abandoned. In these circumstances the Court discerns no reason for it to consider a later starting date for the six-month period, or to treat it as having been interrupted for any reason. It follows that the application has been lodged out of time. It must therefore be rejected in accordance with Article 35 § § 1 and 4 of the Convention.

For this reason, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President