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Cite as: [1987] ECHR 33

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AS TO THE ADMISSIBILITY

Application No. 11882/85 by M.C. against the United Kingdom

The European Commission of Human Rights sitting in private on 7 October 1987, the following members being present:

MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS

Mr. J. RAYMOND, Deputy 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 2 September 1985 by M.C. against the United Kingdom and registered on 2 December 1985 under file No. 11882/85;

Having regard to

- the reports provided for in Rule 40 of the Rules of Procedure of the Commission;

- the Commission's decision of 18 July 1986 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;

- the observations submitted by the respondent Government on 18 November 1986 and the observations in reply submitted by the applicant on 24 March 1987;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1922, and resident in Glasgow. He is represented before the Commission by Mr Paul Burns, a solicitor practising in Glasgow. The facts as agreed by the parties may be summarised as follows:

From August 1982, the applicant was employed as an assistant janitor of Boclair Academy by Strathclyde Regional Council. After a series of thefts in the school, the headmaster, with the aid of the police, set a trap for the thief by placing in a drawer a £1 note impregnated with a substance only visible under ultra violet light. Left in an envelope in the drawer in the school office over a weekend, it was found to be missing on Monday, 26 March 1983 with no apparent sign of a break-in. The applicant had been on duty during that period and was requested by the police to place his hands under an ultra violet lamp. The applicant agreed to do so. The police officer claimed to see specks of the powder on the applicant's fingers and cautioned the applicant, asking whether he had been in the school. The applicant replied that he had been in the school office to obtain an envelope from another drawer in the office. The applicant alleged he could see no traces at all on his fingers.

The applicant was charged with theft of the pound note. He was suspended from work and, after a disciplinary hearing held on 29 March 1984 before the Education Officer and the Headmaster, was dismissed from the school on 5 April 1984. The applicant had already been summoned before a disciplinary hearing in June 1983. He had been unable to attend due to illness and on 21 June 1983 the Education Officer had issued a final written warning in respect of severe misconduct in that the applicant had knowingly submitted an overtime claim form for a time when he had not worked and on which a signature had been forged. The applicant had not appealed this warning.

On 15 November 1984, the applicant pleaded not guilty to theft at Dumbarton Sheriff Court. The case was dismissed on the basis of no case to answer and the applicant acquitted. It appeared from the evidence that the police officers had not been present when the note had been treated and that they had had no training in the use of the substance. It also was not established that any traces found on the applicant's fingers could not have been caused by another substance. It also emerged that it could not be established whether a £1 note had been left there at all, or if there was, where it was placed, and whether the substance had been allowed to contaminate other parts of the room. In an attempt to regain his job and the tied accommodation which accompanied it, the applicant applied on 8 June 1984 to an Industrial Tribunal claiming unfair dismissal.

It emerged at the tribunal hearing that, when the Council dismissed the applicant, they had been mistaken as to certain facts which further investigation could have clarified. In particular, it appeared that the signature allegedly forged in the previous incident, which gave rise to the final warning, was in fact authentic. The tribunal found however that the dismissal was not affected by this mistake, since in relation to the other matter to which the warning related, the false claim for overtime, the final warning was still valid. The tribunal also found the whole evidence before the disciplinary hearing was such that new evidence, concerning the possibility of entry to the school without leaving evidence of a break-in, would not have affected the outcome. The tribunal concluded therefore on 7 May 1985 that the applicant had not been unfairly dismissed. By a letter of 31 July 1985, the Registrar of the Employment Appeal Tribunal (Scotland) informed the applicant that the appeal tribunal had no jurisdiction to entertain his appeal against this decision as his Notice of Appeal did not raise any question of law. The applicant has since suffered a heart-attack which he attributes to the stress caused by the case.

In Scots common law, employment is a contractual relationship in which dismissal, with due notice, is entirely lawful. It is a well established principle of law that any conduct by an employee which is in breach of the contract, such as dishonesty, may, depending on its circumstances and gravity, merit dismissal without notice. The case of Maxwell v Buchanan (1776) Mor 593 App, decided more than two centuries ago and still representative of the law, illustrates that instant dismissal on the grounds of theft is justified whether or not a conviction for the offence of theft in the criminal courts ensues.

That position remains unchanged. However, under the Employment Protection (Consolidation) Act 1978 a dismissed employee may generally complain to an industrial tribunal that his dismissal was "unfair" (sections 54 and 67). If the tribunal so decides, it may award him compensation or, in specified circumstances, order his reinstatement or re-engagement (sections 68 to 70). If this order is not complied with additional compensation may be awarded (section 71). The legislation however merely provides a remedy for certain dismissals which under the Act are "unfair"; it does not prohibit them.

Industrial tribunals are judicial bodies set up under statute (section 128 of the 1978 Act) to adjudicate on various employment matters including the question of unfair dismissal. There is a right of appeal against their decisions on a point of law to the Employment Appeal Tribunal (section 136) and then to the Court of Appeal and the House of Lords.

For a dismissal to be fair the employer must show that there was a reason for it and that this reason was one of those specified in the statute, being a reason connected with the conduct of the employee (section 57 (1) and (2) of the 1978 Act). Section 57 (3) goes on to provide that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employer's undertakings) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.

The case-law of the English Courts establishes that the question which has to be addressed by the employer when considering dismissal (and by the tribunal when considering whether a dismissal is fair) is not whether the employee is guilty, in terms of the criminal law, but the question of what, given the information available to the employer at the time when he addresses the question and in the circumstances of the case, it is reasonable for the employer to do. It is not sufficient for an employer to rely on an honest belief in the employee's guilt: there must be reasonable grounds and the employer must act reasonably in all the circumstances. An employer must also have sufficient information to enable him reasonably to assume guilt on the part of the employee and must have carried out such investigation as was reasonable. The standard of proof by which these matters are to be determined at a hearing before an industrial tribunal is that applicable in a civil case, that is, proof on the balance of probabilities.

Where the grounds for dismissal are misconduct which might amount also to a criminal offence such as theft, the employer is not required to have satisfied himself as to the existence of these grounds on the same standard of proof as is required for the proof of guilt in criminal cases - proof beyond reasonable doubt - and it has even been questioned in one case (Lees v The Orchard (1978) IRLR 20, Annex E) whether the standard of proof required is as high as that required for proof of facts in civil cases - proof on the balance of probabilities. The standard required in unfair dismissal cases is that which has been described as justifying a "reasonable conclusion of management". There is also a related but separate distinction in Scots law between what is sufficient evidence of a fact in industrial tribunal proceedings and what is sufficient evidence of a fact in criminal proceedings. A judicial tribunal or court may not take facts into consideration until these facts are supported by sufficient evidence. In civil proceedings and, in particular, proceedings before industrial tribunals (which in any event are not bound by the strict rules of evidence), evidence is sufficient even if it is uncorroborated by other evidence: in a simple case, one witness is sufficient. In Scottish criminal cases, however, the general rule is that evidence is not sufficient unless corroborated: in a simple case, two witnesses are required. It follows from that distinction that evidence of a fact may be entertained by an industrial tribunal on the testimony of one witness but evidence of the same fact may not be entertained by a criminal court in Scotland unless that evidence has been corroborated by the evidence of another witness.

COMPLAINTS

The applicant complains that in being dismissed from his employment before his trial he has not been presumed innocent till proved guilty. He also complains that he did not receive a fair hearing before the industrial tribunal in that they refused to hear evidence from the criminal proceedings, in which he was acquitted, or evidence of the series of break-ins which took place in the school prior to the incident.

He finally complains that he has lost his home and has had much distress caused to himself and his family.

The applicant invokes Articles 6 paras. 1 and 2 and 8 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1985 and registered on 2 December 1985. On 18 July 1986 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits on the issues concerning Article 6 paras. 1 and 2.

The Government's observations were submitted on 18 November 1986 and the reply thereto was submitted by the applicant on 24 March 1987, after an extension of the time-limit of two months.

SUBMISSIONS OF THE PARTIES

A. The Government

a. The facts

The Government submit that the industrial tribunal did hear evidence from the headmaster, the head janitor, another janitor and the applicant that there had been other thefts in the school, both before and after the applicant's dismissal. The tribunal referred to these thefts in their written decision and there is no reason to suppose that the tribunal failed to give due consideration to that evidence. Detailed evidence of what happened in the criminal proceedings was not heard because the tribunal was required only to deal with the manner on the basis of what the employers knew or ought to have known at the time of the dismissal. The exclusion of this latter evidence was accepted by both the applicant and his solicitor.

b. Admissibility and merits

Article 6 para. 2

i. Article 26

In this context the Government note that the matter of which the applicant complains, namely his dismissal, occurred on 4 April 1984, and that the criminal proceedings in which the applicant was acquitted were concluded on 15 November 1984. The date of the subsequent proceedings for unfair dismissal is not relevant to the complaint in relation to Article 6 para. 2. The present application was, however, not made until 2 September 1985. In these circumstances, the Government submit that the application was not made within the period of six months from the date on which the final decision was taken, and that it is therefore inadmissible.

ii. Other considerations

The Government further submit that in applying Article 6 to the circumstances of the present case, it is important to distinguish between, on the one hand, the considerations relevant to the criminal proceedings in respect of the offence with which the applicant was charged and, on the other, the considerations which are relevant to the actions of public officials other than in relation to the proceedings. The Government rely on the Commission's decision Krause v. Switzerland, Application No. 7986/77 (Dec. 3.10.78, Yearbook 21 p. 516) and also on Applications Nos. 7950/77, (Dec. 4.3.80, D.R. 19, p. 213) and 8361/78 (Dec. 17.12.81, D.R. 27 p. 37).

The Government submit that the dismissal of the applicant for theft by Strathclyde Regional Council did not constitute a violation of Article 6 para. 2 of the Convention as interpreted in these cases. The dismissal of the applicant clearly was not a criminal procedure, nor was it a matter that was in any way related, as a matter of procedure, to the criminal charges brought against him; the two matters were quite separate. The dismissal did not therefore fall within the area - that is, criminal procedure - in which Article 6 para. 2 has its primary application. Nor can it be said that in this case there has been any "formal declaration" that the applicant was guilty of any criminal offence of the type referred to in the cases cited. The dismissal of the applicant was, on the contrary, a matter between the Strathclyde Regional Council and the applicant which was not announced to the public at large in any formal way. It was a matter related solely to the employment relationship between the applicant and the Council, and had no direct connection with the criminal prosecution. It did not constitute an action by any person or body who was, or who would be understood by the public to be, connected with the prosecution process. Nor can it be said, on the evidence in this case, that the actions of the Council in any way prejudiced the right of the applicant to be considered innocent until proved guilty in the criminal proceedings brought against him. The criminal court acted properly and impartially throughout and in fact did not find the applicant guilty of the offence charged.

Article 6 para. 1

First the Government would point out that the post from which the applicant was dismissed was that of a janitor with the Strathclyde Regional Council, a department of local government in Scotland. In this context, the Government would refer to the consistent case-law of the Commission which indicates that litigation concerning dismissal from public service does not involve the determination of "civil rights or obligations" and therefore falls outside the scope of Article 6 para. 1. The Government refer in particular to Application Nos. 3937/69, X v. Belgium (Dec. 12.12.69, Collection 32 p. 61); 8469/79, X v. U.K. (Dec. 8.10.80. D.R. 21 p. 168)); 8686/79, X v. Italy (Dec. 10.10.80, D.R. 21 p. 208) and 9801/81, X v. FRG (Dec. 7.12.81. D.R. 27 p. 249). The fact that the the applicant was serving under a contract of employment does not affect the public character of his duties (Application No. 8496/79). The Government therefore submit that, as the applicant's complaint is in relation to his dismissal from a public service post, the proceedings relating to that dismissal did not amount to a "determination of his civil rights and obligations" and that Article 6 para. 1 therefore has no application to this case.

The Government note that it is well-established in the jurisprudence of the Commission that the question whether a trial conforms to the standard laid down in Article 6 para. 1 must not be decided on the basis of an isolated consideration of one particular aspect of the trial or incident. See for example the Commission's decisions on Applications Nos. 343//57, Nielsen v. Denmark (Dec. 2.9.59, Yearbook 4 p. 548), 5574/72 (Dec. 21.3.75, D.R. 3 p. 10), 7306/75 (Dec. 6.10.76, D.R. 7 p. 115) and 8744/79 (Dec. 2.3.83, D.R. 32 p. 141).

Furthermore, it has also been the view of the Commission that in any case the right to receive a fair hearing under Article 6 para. 1 of the Convention does not entail as a consequence the unrestricted right to present evidence, irrespective of its relevance (See e.g. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22). The Government submit that this principle is relevant to Article 6 as a whole. The fact that the applicant was not found guilty of the charge in question is irrelevant to the questions which had to be determined by the domestic tribunal. In particular, the fact of the applicant's acquittal was not relevant, since the tribunal did not have to consider whether it was satisfied that the offence was committed, but rather had to investigate the state of mind and knowledge of the employer.

The Government further submit that, since the purpose and effect of proceedings before the industrial tribunal and the matters addressed and legal criteria applied in these proceedings are so materially different from those in the criminal proceedings, evidence concerning the applicant's acquittal for theft in the criminal proceedings could be properly excluded from the industrial proceedings which appears to have been directly relevant to the acquittal - evidence, for example, of the absence of the two police officers when the pound note was treated and as to their lack of expertise about the substance would not have been relevant to the questions before the industrial tribunal, questions which might reasonably be summarised as follows - "Given the information which is available to the employer, or which he ought to have known, at the time of the dismissal and the circumstances of the case, what was it reasonable for the employer to do?"

The Government submit that the evidence of the applicant's acquittal was irrelevant for yet another reason, namely the difference in the standard of proof required in criminal and civil proceedings. The acquittal of the applicant in criminal proceedings indicated that his guilt had not been proved beyond reasonable doubt. The standard of proof of facts in civil cases is lower, and the fact that the applicant's guilt could not be established according to a different, higher standard of proof is clearly not decisive of the same issue in civil proceedings.

The applicant has also referred to the evidence which was before the criminal court as to subsequent thefts at the school. The facts of the case show that the industrial tribunal did not refuse, during the hearing of the applicant's complaint of unfair dismissal, to hear evidence of the other thefts including subsequent thefts at the school; and indeed such evidence was in fact heard by the tribunal.

B. The applicant

a. The facts

The industrial tribunal refused to allow evidence of what happened at the criminal trial. This was to the detriment of the applicant since the evidence of witnesses at the tribunal was different from the evidence which they rendered at the criminal trial and the applicant was thereby denied the opportunity of cross-examining them upon the inconsistencies. It is agreed that the tribunal had evidence of theft subsequent to the applicant's dismissal. The tribunal should however have looked at the reasonable investigations which the employers should have made.

b. Admissibility and merits

Article 6 para. 2

i. Article 26

The applicant received his copy of the tribunal's judgment on 9 May 1985 and thereafter applied to the Employment Appeal Tribunal. The Commission was not competent until the applicant has exhausted these local remedies.

ii. Other considerations

The letter dismissing the applicant stated "the reasons for your dismissal are the theft from the school office ...". In determining whether or not the dismissal for alleged theft was a violation of Article 6 para. 2, consideration should be given to the terms of his dismissal which were stated to be for theft, not for alleged theft. The local authority clearly dismissed the application on the assumption of his guilt. Had they not made that assumption, it is clear from their own submissions that they would not have dismissed him. Had they not dismissed him pending outcome of the prosecution against him, it is clear that matter would then have emerged which would have shown the unreasonableness of their decision to dismiss.

Article 6 para. 1

The applicant held a relatively menial post under a contract of employment. The nature of that employment was such that it is a matter of no consequence that his employer happened to be a division of local government. The applicant's dismissal therefore falls to be distinguished from cases restricting access to government or special professions or excluding parties from the same on grounds of some defect.

The applicant also submits that the tribunal, being an informal body, would have been entitled to look at the evidence pleaded in the criminal case and was under the obligation to hear all relevant evidence. By excluding the most important evidence, the tribunal itself ceased to provide a fair hearing both under domestic law and under the Convention.

The applicant further submits that the difference in the standard of proof required in criminal and civil proceedings is irrelevant. The tribunal's duty was to look at all of the evidence which had a bearing on the matter before it could assess whether the statutory test of reasonableness and fairness of the applicant's dismissal had been reached. By excluding important evidence from its consideration, the tribunal acted unfairly to the applicant to the extent of depriving him of a fair hearing within the meaning of Article 6 para. 1.

THE LAW 1. The applicant has complained that, in being dismissed for theft from his post as a school janitor before criminal proceedings against him were completed (by his acquittal), his employer, the state local education authority, violated the presumption of innocence laid down in Article 6 para. 2 (Art. 6-2) of the Convention.

The Government have contended that this aspect of the application is either inadmissible for non-observance of the six months' rule, or for being manifestly ill-founded, the employer's disciplinary proceedings not being a criminal prosecution.

As regards the observance of the six months' rule laid down in Article 26 (Art. 26) of the Convention, the Commission finds that the final effective decision in the present case was that of the industrial tribunal on 7 May 1985, for it was not until the tribunal had decided that the applicant had been fairly dismissed by his employer that the full effects of the applicant's prejudice could be assessed. As he introduced the application to the Commission on 2 September 1985, within six months of that decision, he has respected the requirements of Article 26 (Art. 26) of the Convention.

As to the substance of the applicant's complaint, the Commission refers to the terms of Article 6 para. 2 (Art. 6-2) which ensures that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

The Commission also refers to its previous case-law: In the case of Krause v. Switzerland (No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73) the Head of the Federal Department of Justice and the Police gave a television interview in which he stated that a person, albeit awaiting trial, had committed criminal offences. On the facts of the case the Commission found that the presumption of innocence had not been breached, but affirmed the general principle that Article 6 para. 2 (Art. 6-2) "protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court. Article 6 para. 2 (Art. 6-2), therefore, may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.

The Commission finds, however, that a distinction must be made between civil proceedings and criminal proceedings arising out of the same events. It is a general feature of legal systems in States which are Parties to the Convention that parallel civil and criminal proceedings may be initiated against a person and, by virtue of the different standards of proof normally observed in such proceedings, acquittal at the end of a criminal trial, because the accused has not been shown to be guilty of an offence beyond all reasonable doubt, does not necessarily preclude that same person's civil liability on the balance of probabilities (cf. criminal proceedings for a road traffic offence and civil proceedings for negligence following a car accident). Whilst State officials are under an obligation to observe scrupulously the presumption of innocence with regard to pending criminal proceedings, particularly those officials involved in the prosecution, trial or appeal, such an obligation does not generally arise in respect of a person's civil obligations vis-à-vis the State, as in the present case with a contract of employment in the State public service.

An examination of the facts of the present case reveals that the assessment by the applicant's employer of the applicant's honesty and his fitness for further service was communicated to the applicant only by way of his notice of dismissal. This assessment was not publicly communicated. The proceedings before the industrial tribunal were of a civil nature and did not determine whether a criminal offence had been committed. They rather determined whether the employer had acted reasonably at the material time and whether the applicant's dismissal had been fair.

The Commission finds that the aforementioned factors did not involve determinations of any criminal charge to which the presumption of innocence would have attached, nor have they been shown to have had any influence on the course of the subsequent criminal proceedings against the applicant. The Commission concludes, therefore, that the facts of the present case do not raise an issue falling within the scope of Article 6 para. 2 (Art. 6-2) of the Convention. It follows that this aspect of the applicant's case is incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).

2. The applicant has next complained that the proceedings before the industrial tribunal were unfair, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

The Government have contended that questions concerning the dismissal of persons in public service do not involve the determination of civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:

"In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

The Commission finds that whilst internal professional disciplinary proceedings against persons employed in public service may not attract the guarantees of Article 6 para. 1 (Art. 6-1) of the Convention, when a contract of employment, albeit in the public service, permits access to the civil courts to determine the respective civil liabilities of the parties, the proceedings before the normal courts may usually be said to determine civil rights and obligations within the meaning of Article 6 para. 1 (art. 6-1) of the Convention and, therefore, enjoy the guarantees laid down in this provision (cf. No. 6504/74, Dec. 7.12.77, D.R. 12 p. 5 at p. 8).

The applicant's specific complaint concerning the industrial tribunal proceedings was that evidence of the criminal trial, at which he was acquitted, was excluded. The Government contended, however, that certain evidence about the trial was before the industrial tribunal and that the exclusion of other evidence was accepted by the applicant and his solicitor.

The Commission notes that the industrial tribunal heard the school's headmaster and other janitors. There is no evidence in the case to suggest that the applicant was not able to challenge their testimony, call his own evidence or put his case fully to the tribunal. In particular, contrary to the applicant's original assertion, it is clear that the tribunal did hear evidence concerning earlier thefts at the school. In these circumstances, the Commission concludes that this aspect of the applicant's case is unsubstantiated. His complaint of an unfair hearing before the industrial tribunal is, therefore, manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. Finally the applicant has complained that his dismissal from his employment caused the loss of his home (being tied to the job) and much distress to himself and his family.

He has invoked Article 8 (Art. 8) of the Convention which provides as follows:

"Everyone has the right to respect for his private and family life, his home...

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Commission finds that, even assuming that the present case could be said to have involved an interference with the applicant's Article 8 (Art. 8) rights, that interference was justified as being "necessary in a democratic society... for the protection of the rights and freedoms of others", namely the applicant's employer. This aspect of the applicant's case is, therefore, also 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.

Deputy Secretary to the Commission

President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)