FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50034/99 by Olubukunola OBASA against the United Kingdom

The European Court of Human Rights ( Fourth Section) , sitting on 30 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Sir Nicolas Bratza ,

Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , judges , and Mr V. Berger Section Registrar ,

Having regard to the above application introduced on 30 April 1999 and registered on 29 July 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen born in 1961 and resident in Wellingborough             

The facts as submitted by the applicant may be summarised as follows.

On 9 December 1991, the applicant, a social worker employed by a local authority, claimed before an Industrial Tribunal that she had been discriminated against as a black woman with a disability, inter alia , due to the decision to give a promotion to another employee instead of herself, the failure to transfer her to another post and the failure to assign her to a higher grade by giving due recognition to her professional qualifications.

Internal consideration of her complaints appears meanwhile to have culminated in an appeal which was dismissed on 12 May 1993. Shortly after this decision, she received the transfer which she had requested and the refusal of which had formed part of her complaints.

A hearing took place in the Industrial Tribunal on 11-13 May 1994 and 7-10 November 1994. On 20 December 1994, the Tribunal found that there had been discrimination by her employer and rejected the allegations of racial prejudice by her superintendent personally. It noted that the applicant's complaint of racial discrimination in an interviewing procedure for a post had been rejected by her employer as it was not found to constitute an appeal as she had failed to detail fully the alleged discriminatory incident. It held:

“However we have to consider if this policy itself is discriminatory. No clearer statement could have been made by Mrs Obasa that there was discrimination due to her ethnic origin. For procedures to fail to allow for investigation and an appeal when an employee is alleging discrimination we find in itself is discriminatory. We bear in mind that the from the statistics that they have shown us have undoubtedly employed more people from ethnic minorities as a result of their policy. We also are satisfied that there was no intention that there should be discrimination. However ... intention does not have to be an ingredient before discrimination can be found...”

It also considered evidence concerning transfer procedures and concluded that a substantial reason, again not intentional, for the failure to transfer the applicant months if not years ago was not due to the inability to achieve this but due to her ethnic origin. It further found that there had been a breach of the Race Relations Act 1976 in respect of the employer's continuing failure to refer the applicant's qualifications to the relevant body for them to consider whether they rendered her eligible for a higher grade.

The proceedings were adjourned for the parties to reach agreement as to the damages payable. In the absence of agreement, on 9 October 1995, an award of £24,952.51 was made by the Tribunal.

The applicant's employers appealed to the Employment Appeal Tribunal which on 28 October 1996, after a hearing at which the applicant was represented, quashed the findings of discrimination. It found the procedure by which appeals concerning discrimination had to be particularised could not be categorised itself as discriminatory and there was no conduct in implementing the policy which had been identified as discriminatory. It found that on the evidence before the Industrial Tribunal a finding that the delay in transferring the applicant was based on racial grounds was not sustainable (e.g. one white employee had been transferred outside the procedure which should not have occurred; one white employee had been refused transfer; one black employee was refused transfer on non-racial grounds and one black employee had been transferred). As regarded the failure to refer qualifications to the relevant body for assessment for grading, it found that the employer had never, as a policy, referred qualifications and accordingly its refusal to do so in the applicant's case could not be regarded as racially discriminatory.

“In the overall result we have to allow this appeal and quash the findings of racial discrimination made by the Tribunal. The latter was plainly sympathetic to Mrs Obasa, perhaps understandably given that her grievances were dealt with by her employer in a manner which fell some way short of the standards that might reasonably be expected of an employer of size and resources... Our role as a Tribunal of law however leaves us with no option but to rule as we have done.”

On 3 February 1997, the Court of Appeal granted leave to appeal. After a hearing, on 16 February 1998 at which the applicant was represented, the Court of Appeal rejected the applicant's appeal. The Court of Appeal rejected the applicant's argument that the Employment Appeal Tribunal had erred in interfering with findings of the first instance tribunal of fact. It commented:

“One cannot know conclusively why the tribunal went wrong. What seems to me likely is that they found a correlation between an incompetent management and a racially discriminatory management. They have misled themselves into finding that, because of incompetence of the kind which they, in my judgement genuinely, believed to be present, it must, by inference at any rate, be associated with racial discrimination. In my judgment there is no correlation between the two. .. There is no specific finding in relation to personally or to the management system followed that the tribunal believed that a decision had been taken on racial grounds.”

The Court of Appeal refused leave to appeal to the House of Lords on 19 March 1998. On 27 March 1998, the applicant applied for leave to the House of Lords. The House of Lord refused leave on 26 April 1999.

COMPLAINTS

The applicant complains that she has not been protected from racial discrimination by the applicable legislation (the Race Relations Act 1976) contrary to Article 14. She also complains that she did not receive a fair hearing before the courts within a reasonable time contrary to Article 6, referring to the deliberate obstruction and delaying by her employer. She also invokes Articles 6 and 13 of the Convention in that the domestic courts refused to apply their own law and thereby to provide her with protection.

THE LAW

1. The applicant complains under Articles 6, 13 and 14 of the Convention that she was not protected by the courts which failed to apply the applicable legislation against discrimination.

Article 6 provides in its first sentence:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court cannot therefore act as a court of appeal to consider whether or not the domestic courts reached the correct decision on fact and law in the applicant's case.

Insofar as the applicant invokes Article 6 in the context of the fairness of the proceedings, the Court notes that the case was examined substantively over three instances. An examination of the documents submitted by the applicant disclose no elements of procedural irregularity or impropriety which would raise issues under this provision. Nor is it apparent that the way in which the courts handled her claims deprived her of the protection which the Race Relations Act 1976 was intended to provide or in any way discriminated against her.

Furthermore, Article 13 does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para. 52). It cannot be said, in light of the findings above, that the applicant has an "arguable claim" of a breach of Article 14 of the Convention or of Article 6 of the Convention as regards the fairness of the proceedings.

It follows that the above complaints must be dismissed as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant has also complained of the length of proceedings, invoking Article 6 § 1 above which guarantees a fair hearing within a reasonable time. The Court observes that the applicant lodged her claim with the Industrial Tribunal on 9 December 1991 and the final decision appears to have been given by the House of Lords on 26 April 1999, more than seven years four months later. It therefore finds that issues arise requiring communication to the respondent Government and adjourns this part of the application.

For these reasons, the Court, unanimously,

DECIDES TO COMMUNICATE the examination of the applicant 's complaints concerning the length of proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger     Georg Ress

Registrar                    President