THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42116/98 by Shehnaz SOMJEE against the United Kingdom

The European Court of Human Rights ( Third Section ), sitting on 7 March 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza,

Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 December 1997 and registered on 8 July 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in Karachi, Pakistan, in 1953 and living in Melling , Merseyside. The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant qualified as a doctor in Pakistan in 1978 and came to the United Kingdom in 1980. In 1986 she was appointed to the post of Ear, Nose and Throat registrar at Walton Hospital in Merseyside.

In July 1988, the Merseyside Regional Health Authority (“the Health Authority”) held reviews of the nine non-rotational registrars, including the applicant. The applicant alleges that she was treated less favourably than others, on racial grounds, in relation to the review and in relation to other aspects of her training and employment.

On 25 October 1988, the applicant commenced proceedings in the Industrial Tribunal against the Health Authority and others alleging discrimination contrary to the Race Relations Act 1976 (“the first claim”). The first claim was dismissed after a hearing which lasted five days in February and April 1989. The applicant applied for a review of the decision.

In March 1989, the Health Authority informed the applicant that her contract of employment would not be renewed. In April 1989, the applicant qualified as a Fellow of the Royal College of Surgeons. On 1 June 1989, the applicant’s contract of employment expired and she was dismissed.

She subsequently brought further proceedings in the Industrial Tribunal on 2 August 1989 in which she made allegations of victimisation (“the second claim”), and on 23 August 1989 in which she alleged that she had been unfairly dismissed (“the third claim”).

In August 1989, the Industrial Tribunal indicated that the second claim would be “held in abeyance”, pending the completion of the review hearing in respect of the first claim.

The review hearing in respect of the first claim took place in November 1989, and the Industrial Tribunal confirmed its original decision. The applicant appealed to the Employment Appeal Tribunal in respect of both the original decision and the review by the Industrial Tribunal.

In January 1991, the Industrial Tribunal stayed the substantive hearing of the second claim, pending the hearing of the applicant’s appeals in respect of the first claim. On 22 May 1991, the solicitors acting for the applicant in respect of the second claim complained to the Industrial Tribunal about the delay in listing the hearing of the second claim, and asked the Industrial Tribunal to hear the second claim without waiting for the appeals in respect of the first claim to be heard.

In July 1991, the Employment Appeal Tribunal granted the applicant leave to appeal in respect of the first claim, and indicated that the second claim should be heard by the Industrial Tribunal before the Employment Appeal Tribunal heard the appeals in respect of the first claim.

In October 1991, the Employment Appeal Tribunal stayed the appeals in respect of the first claim.

In February 1993, the Health Authority applied to strike out the second and third claims for want of prosecution by the applicant. A preliminary hearing took place before the Industrial Tribunal, which reserved its decision.

On 8 June 1993, the Industrial Tribunal gave its decision in respect of the hearing which had taken place in February 1993, refusing to strike out the second and third claims and indicating that the substantive hearing in the second claim should proceed as quickly as possible. The Tribunal said that, in reaching its decision (at paragraph 9):

“...the Tribunal has been most conscious of the considerable delays which have already occurred but also that that cannot solely be attributed to one or other of the parties. Moreover, the Tribunal itself, even allowing for the extremely difficult general pressures, most [sic] acknowledge a share of responsibility. No-one, unfortunately, emerges without blemish.”

On 2 December 1993, the Industrial Tribunal heard the applicant’s application to strike out the respondent’s Notice of Appearance in respect of the second claim. The application was refused, and in January 1994, the applicant appealed to the Employment Appeal Tribunal. On 22 September 1994, the applicant’s appeal was dismissed, and the Employment Appeal Tribunal directed that a date be fixed for the hearing of the second claim.

In December 1994, the Industrial Tribunal listed the hearing of the second claim to begin on 6 February 1995.

On 15 January 1995, the applicant asked the Industrial Tribunal to adjourn the hearing of the second claim indefinitely, as she was considering applying to the Employment Appeal Tribunal for a review of its decision of 22 September 1994 dismissing her appeal, and because her father was seriously ill.

On 19 May 1995, the Employment Appeal Tribunal heard the application for review of its decision of 22 September 1994 made by the applicant, and confirmed the decision. At the same time, the Employment Appeal Tribunal lifted the stay which it had imposed in October 1991 on the appeals in respect of the first claim and ordered that the appeals be listed for hearing on 6 November 1995, preferably before the same Tribunal. It also ordered that if the second claim were dealt with on the merits before November 1995, any appeal by the losing party should be listed to be heard by the same Tribunal on 7 November 1995.  In lifting the stay, the Employment Appeal Tribunal said:

“It had come to light during the course of the review hearing that not all the directions made by this Tribunal on 17 th July 1991 had been complied with, that a stay had been placed on the appeals and that no application was made to remove it.”

The hearing of the second claim was fixed for 5 June 1995. On 31 May 1995, the applicant applied for an adjournment, on the grounds that she had applied for the case to be transferred away from the Liverpool Industrial Tribunal.

On 1 June 1995, the Industrial Tribunal refused the applicant’s application for an adjournment of the hearing in the second claim, which consequently began on 5 June 1995. The applicant indicated that she was participating in the hearing under protest. The hearing took place over a period of 17 days between June and September 1995. On 2 November 1995, the Industrial Tribunal dismissed the second claim.

The applicant’s appeal in respect of the dismissal of the first claim was heard by the Employment Appeal Tribunal on 6 and 7 November 1995. The Tribunal reserved its judgment.

On 14 December 1995, the applicant appealed against the dismissal of the second claim.

In January 1996, the applicant applied for the third claim to be transferred from the Liverpool Industrial Tribunal. The application was refused, and the applicant appealed to the Employment Appeal Tribunal.

On 3 April 1996, the Chairman of the Industrial Tribunal which had heard the second claim provided his comments in writing on the notice of appeal lodged by the applicant in respect of the second claim.

The appeal from the dismissal of the second claim was heard on 6 and 7 June 1996, together with the appeal from the refusal to transfer the third claim. The Employment Appeal Tribunal reserved its judgment on both appeals.

The applicant’s two appeals in the first claim (reserved from 6 and 7 November 1995) and her appeals in the second and third claims (reserved from 6 and 7 June 1996) were dismissed by the Employment Appeal Tribunal in a single judgment on 26 October 1996. The applicant applied to the Employment Appeal Tribunal on 26 October 1996 for leave to appeal to the Court of Appeal. The application for leave was refused on 4 November 1996.

On 22 April 1997, the Employment Appeal Tribunal ordered the applicant to contribute the sum of 2,500 GBP to the respondent’s costs of the appeals heard on 6 and 7 June 1996, and refused an application by the Health Authority for the costs of the four appeals dismissed on 26 October 1996. The Tribunal refused the application by the applicant for leave to appeal to the Court of Appeal in respect of the order for costs.

The applicant applied to the Court of Appeal for leave to appeal against the dismissal by the Employment Appeal Tribunal on 26 October 1996 of each of her four appeals. On 7 July 1997, the Court of Appeal refused leave to appeal in all four appeals.

In late 1997, the applicant asked the Industrial Tribunal to adjourn the third claim to await the outcome of her application to the European Commission of Human Rights and of an application which she indicated that she was making to the European Court of Justice. The Tribunal refused the applicant’s request for an adjournment, and listed the hearing of the third claim for 1 May 1998.

On 1 May 1998, the Industrial Tribunal dismissed the third claim at a hearing at which the applicant declined to appear.

COMPLAINTS

The applicant complains of degrading, humiliating and discriminatory treatment by the Health Authority when she was working as an ear, nose and throat doctor. She complains that she was victimised by the Health Authority for bringing the first claim and that she has been systematically “blacklisted” by the various bodies which make up the National Health Service in the United Kingdom. She complains that as a consequence of the loss of her employment, she was forced to accept locum work at considerable distances from her home, which interfered with her private and family life as she lived with, and cared for, her elderly father.

The applicant complains of degrading, discriminatory, unfair and partial treatment by the Liverpool Industrial Tribunal and the Employment Appeal Tribunal in respect of proceedings brought by her. She complains of a conflict of interest of her own representative. She also complains that the proceedings were not concluded within a reasonable time.

The applicant invokes Articles 3, 6 § 1, 8, 10, 13, 14, 17 and 18 of the Convention.

THE LAW

1. The applicant complains that the domestic proceedings were not concluded within a reasonable time.

Article 6 § 1 of the Convention provides, so far as material:

“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.”

The Court notes that proceedings were brought by the applicant in the Industrial Tribunal in 1988 (the first claim) and 1989 (the second and third claims), and that, following a series of appeals, the proceedings concluded in 1997 (the first and second claims) and 1998 (the third claim).

T he Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

2. The Court has examined the rest of the applicant’s complaints and has noted that the applicant has been informed of the possible obstacles to their admissibility. In the light of all of the material in its possession and, in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the applicant’s complaints must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint concerning the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President