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You are here: BAILII >> Databases >> European Court of Human Rights >> SIBSON v. THE UNITED KINGDOM - 14327/88 [1993] ECHR 18 (20 April 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/18.html
Cite as: (1994) 17 EHRR 193, [1993] ECHR 18, 17 EHRR 193
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In the case of Sibson v. the United Kingdom*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr C. Russo,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
Sir John Freeland,
Mr M.A. Lopes Rocha,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 29 October 1992 and on
24 March 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 4/1992/349/422. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
21 February 1992, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 14327/88)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Commission under Article 25 (art. 25) by
Mr Dennis Sibson, a British citizen, on 17 October 1988.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United
Kingdom recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to obtain
a decision as to whether the facts of the case disclosed a breach
by the respondent State of its obligations under Article 11
(art. 11) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyers who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On
27 February 1992, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr J. Cremona, Mr F. Matscher, Mrs E. Palm, Mr A.N. Loizou,
Mr J.M. Morenilla, Mr F. Bigi and Mr M.A. Lopes Rocha (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr C. Russo, substitute judge, replaced Mr Cremona,
whose term of office had expired and whose successor at the Court
had taken up his duties before the hearing (Rules 2 para. 3 and
22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the United Kingdom Government ("the Government"), the Delegate
of the Commission and the applicant's lawyers on the organisation
of the proceedings (Rules 37 para. 1 and 38). Pursuant to the
orders made in consequence, the Registrar received on the dates
indicated:
(a) from the Government, a memorial (15 and 22 June 1992)
and observations on the applicant's claims under Article 50
(art. 50) of the Convention (20 October);
(b) from the applicant, a memorial (22 June), a letter
supplementing that memorial (11 August) and a statement of costs
claimed under Article 50 (art. 50) (21 September).
In a letter of 18 August the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing. On 26 August the Commission filed
a document which the Registrar had sought from it on the
President's instructions.
5. As directed by the President, the hearing took place in
public in the Human Rights Building, Strasbourg, on
26 October 1992. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mrs A. Glover, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr J. Eadie, Barrister-at-Law, Counsel,
Ms A.-M. Lawlor, Administrator,
Department of Employment,
Mr P. Kilgarriff, Legal Adviser,
Department of Employment, Advisers;
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicant
Mr J. Bowers, Barrister-at-Law, Counsel,
Mr M. Beattie, Solicitor.
The Court heard addresses by Mr Eadie for the Government,
Mr Marxer for the Commission and Mr Bowers for the applicant, as
well as a reply to a question put by the President. Both the
Government and the applicant filed a written reply to a question
put by the Court.
6. The Registrar received, on 9 November 1992, further
observations from the Government on the applicant's claims under
Article 50 (art. 50) and, on 20 January 1993, the applicant's
comments on those observations.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Events leading up to the termination of the applicant's
employment
7. Mr Sibson, who was born in 1929, was employed by
Courtaulds Northern Spinning Ltd, formerly Courtaulds Northern
Textiles Ltd, ("CNS") from November 1973 as a heavy goods vehicle
driver. He was based at its depot at Greengate, Lancashire,
together with between forty and fifty other drivers. His
services gave complete satisfaction at all times.
8. Until the events giving rise to the present case, the
applicant was a member of the Transport and General Workers Union
("TGWU"); from 1981 to 1984 he was its branch secretary. In 1985
all the other non-managerial employees at Greengate save one
belonged to that union. At that time, however, that depot was
not a "closed shop" (see paragraph 17 below). Indeed, the later
of two statements of his terms of employment furnished to the
applicant specified that he had the right to be a member of no
trade union and that he would be informed if this right came to
be modified by the conclusion of a closed shop agreement.
9. In March 1985 a fellow driver, Mr D., allegedly accused
Mr Sibson of having "milked the funds" of the union whilst he was
branch secretary. The applicant subsequently lodged with the
local TGWU branch a complaint to the effect that Mr D. had
"disseminated false statements tending to depreciate" him as one
of its officers, but it was dismissed by the branch adjudication
panel on 20 July 1985.
Mr Sibson was so dissatisfied with that decision that he
resigned from TGWU by letter of 24 July and joined the United
Road Transport Union instead. Some of his fellow drivers
immediately ostracised him and others obstructed him in the
performance of his work.
10. Between July and October 1985 CNS attempted in vain to
resolve the dispute. After a period of "uneasy peace", a
substantial majority of the TGWU members at Greengate voted, on
12 October, in favour of (a) a closed shop agreement with CNS and
(b) industrial action if Mr Sibson continued in employment at
that depot after 25 October.
At a meeting on 21 October between Mr Dear, the personnel
manager of CNS, and the branch committee of the union it was
agreed that the strike threat would be lifted if the applicant
either rejoined TGWU or was employed on driving work not based
at Greengate. On 22 October the applicant told Mr Dear that he
would rejoin the union only if he received an apology from Mr D.
and that he would not accept the alternative proposed by Mr Dear,
namely a move to Chadderton, a depot about 1½ miles away from
Greengate. In a letter of the same date to the applicant,
Mr Dear summarised the discussions to date; stated that CNS were
contractually entitled to transfer the applicant to Chadderton,
where his earnings would be similar to those at Greengate; denied
that the move would be a demotion; and expressed the hope that
the applicant would give serious thought to his position because
"[his] dismissal [was] a possibility".
11. Further meetings were then held, with the participation
of a senior official of the Advisory, Conciliation and
Arbitration Service. The applicant declined to accept as an
apology a certain statement to be signed by Mr D. As regards a
transfer to Chadderton, the applicant expressed concern about
conditions there, in particular his fear - which Mr Dear assured
him was groundless - of losing his current lorry and allowances
for nights spent away from home; he also said that he could not
face the aggravation from other drivers which he was sure would
continue at that depot.
At a final meeting on 8 November 1985 the applicant
declined to accept either of the alternatives then put before him
- working at Greengate after rejoining TGWU or moving to
Chadderton - and suggested that the management should dismiss
him. Mr Dear refused to do that, and added that if the applicant
reported to Greengate for work, he would be sent home without
pay. Mr Sibson, citing his solicitor's advice that that would
constitute constructive dismissal (see paragraph 19 below), then
said that he would resign with immediate effect, which he did by
letter of the same date. He did not take up Mr Dear's further
offer, dated 14 November, of employment at Chadderton with the
same opportunity for earnings and expenses as previously.
B. Domestic proceedings taken by the applicant
12. Mr Sibson then lodged with the Industrial Tribunal a
complaint of unfair dismissal (see paragraph 18 below) against
CNS and TGWU. In the grounds for his application he stated that
he had "been 'constructively dismissed' for refusing to accept
'action short of dismissal'" (see paragraph 20 below). His
representative in these proceedings was not legally qualified,
legal aid not being available for this purpose.
CNS and TGWU contended that a closed shop agreement was
in existence (which would have made any dismissal fair; see
paragraph 18 below). CNS also denied that there had been either
constructive dismissal or action short of dismissal. Mr Dear
admitted in cross-examination the absence of any operational
reason for moving the applicant to Chadderton, the sole purpose
being to avoid a strike; had a strike not been threatened, CNS
would have retained him at Greengate and not put any pressure on
him to rejoin TGWU.
By decision of 21 July 1986, the Industrial Tribunal
unanimously accepted the complaint of unfair dismissal; it did
not deal with the merits of the allegation of action short of
dismissal. It found that Mr Sibson was entitled to refuse to
rejoin TGWU because there was no closed shop agreement in force;
that the request that he move to Chadderton was not reasonable
since it was not made for genuine operational reasons but solely
to avoid a strike; that CNS had no right to suspend the applicant
without pay; that he was therefore entitled to treat himself as
dismissed; and that the dismissal was unfair because its only
motive was his exercise of his express right not to belong to a
union. The tribunal reserved the question of remedies for
further consideration, the applicant having opted for
re-engagement (see paragraph 18 below).
13. On 16 January 1987 the Employment Appeal Tribunal, by a
majority, dismissed an appeal by CNS on points of law. It found
that the Industrial Tribunal had not erred in law, misdirected
itself or reached an unreasonable conclusion.
14. On 25 March 1988 the Court of Appeal unanimously upheld
an appeal by CNS on a point of law, confined to the question
whether Mr Sibson had been constructively dismissed. It found
that there was an implied term in his contract that his employer
could - for any reason - direct him to work at any place within
reasonable daily reach of his home; the Industrial Tribunal had
erred in law in holding that this right could be exercised only
if the direction were reasonable and that this condition would
not be satisfied unless the direction was made for genuine
operational reasons. Lord Justice Slade stated, as regards this
implied "mobility term":
"I cannot see how Mr Sibson could reasonably have
objected to a term giving the contract this limited
degree of flexibility when he entered the employment in
1973. If the evidence had disclosed any special
circumstances which as at that time made it a matter of
importance to him that he should be based at ...
Greengate ... rather than at (say) Chadderton, the
Industrial Tribunal would no doubt have said so."
The Court of Appeal concluded that CNS had acted within
its contractual rights in requiring the applicant to transfer to
a nearby depot and that he could not be regarded as having been
constructively dismissed. No question of unfair dismissal
therefore arose.
15. On 15 April 1988 Mr Sibson applied for legal aid to
appeal to the House of Lords. On 30 June legal aid was granted
for the purpose of obtaining counsel's opinion on the merits of
an appeal. On 8 August counsel advised that there were no
reasonable prospects of success and that leave to appeal would
not be given. Further legal aid was therefore refused on
19 August.
II. RELEVANT DOMESTIC LAW
16. The relevant domestic law in force at the time of the
events giving rise to the present case may be summarised as
follows.
A. Closed shops
17. A closed shop is an undertaking or workplace where there
is in existence a "union membership agreement", that is an
agreement or arrangement between one or more trade unions and one
or more employers or employers' associations having the effect
in practice of requiring employees of a certain class to be or
become members of a specified union (section 30 of the Trade
Union and Labour Relations Act 1974, as amended).
B. Unfair dismissal
18. The Employment Protection (Consolidation) Act 1978 ("the
1978 Act") provided that, subject to exceptions not relevant to
the present case, "every employee shall have the right not to be
unfairly dismissed by his employer" (section 54); the remedies
for unfair dismissal were compensation or, if the individual
concerned so elected and if the Industrial Tribunal in its
discretion so decided, reinstatement or re-engagement
(section 68). In determining whether to make a reinstatement or
re-engagement order, the tribunal had to take into account, inter
alia, whether it was practicable for the employer to comply
therewith (section 69).
Under section 58(1)(c) of the 1978 Act, as substituted by
section 3 of the Employment Act 1982:
"Subject to subsection (3), the dismissal of an employee
by an employer shall be regarded for the purposes of this
Part as having been unfair if the reason for it (or, if
more than one, the principal reason) was that the
employee -
...
(c) was not a member of any trade union, or of a
particular trade union, or of one of a number of
particular trade unions, or had refused or proposed to
refuse to become or remain a member."
By way of exception to the foregoing, section 58(3) of
the 1978 Act laid down the basic rule that, if a "union
membership agreement" (i.e. a closed shop; see paragraph 17
above) was in existence, the dismissal of an employee for refusal
to become or remain a member of a specified union was to be
regarded as fair. With effect from 26 July 1988 - that is, after
the events giving rise to the present case - this provision was
repealed by the Employment Act 1988.
In determining whether or not a dismissal was unfair, an
Industrial Tribunal was directed to take no account of pressure
exercised on the employer to dismiss the employee, for example
by threatening to strike; however, a third party, such as a trade
union, which had exercised such pressure because the employee was
not a member of a union could be joined as a party to the
proceedings and ordered to pay the whole or part of any
compensation awarded to the employee (sections 63 and 76A of the
1978 Act).
C. Constructive dismissal
19. The notion of constructive dismissal was encapsulated in
section 55(2)(c) of the 1978 Act, which provided:
"... an employee shall be treated as dismissed by his
employer if ... the employee terminates [his] contract,
with or without notice, in circumstances such that he is
entitled to terminate it without notice by reason of the
employer's conduct."
It does not suffice, in this connection, that the
employer's conduct is unreasonable; it must amount to a
significant breach going to the root of the contract of
employment or showing that he no longer intends to be bound by
one or more of its essential terms (per Lord Denning, Master of
the Rolls, in Western Excavating (E.C.C.) Ltd v. Sharp [1978]
Industrial Cases Reports 221, construing an earlier but identical
provision).
D. Action short of dismissal
20. Section 23(1)(c) of the 1978 Act, as amended by
section 10(4) of the Employment Act 1982, conferred on an
employee (defined by section 153(1) of the 1978 Act so as to
include a person whose employment had ceased) a right "not to
have action (short of dismissal) taken against him as an
individual by his employer for the purpose of compelling him to
be or become a member of any trade union or a particular trade
union ...".
The remedy in well-founded cases was compensation, which
might extend beyond financial loss to such matters as injury to
reputation and feelings, of such amount as the tribunal
considered just and equitable in all the circumstances.
Provisions relating to the existence of a closed shop and to the
exercise of pressure on the employer, akin to those applicable
in the context of unfair dismissal (see paragraph 18 above), also
applied in this area.
PROCEEDINGS BEFORE THE COMMISSION
21. In his application (no. 14327/88) lodged with the
Commission on 17 October 1988, Mr Sibson alleged that the
compulsion imposed on him to join TGWU or to move to another
depot was contrary to his rights under Article 11 (art. 11) of
the Convention.
22. By decision of 9 April 1991, the Commission declared the
application admissible. In its report of 10 December 1991
(Article 31) (art. 31), the Commission expressed the opinion, by
eight votes to six, that there had been no violation of
Article 11 (art. 11). The full text of the Commission's opinion
and of the two dissenting opinions contained in the report is
reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 258-A of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
23. At the hearing on 26 October 1992, the applicant
requested the Court "to uphold the admissibility of the
complaint, to uphold the complaint under Article 11 (art. 11) and
to grant full compensation under Article 50 (art. 50) ...".
The Government, for their part, invited the Court to hold
"that the application is inadmissible by virtue of the provisions
of Article 26 (art. 26) of the Convention or, alternatively, that
there has been no violation of Article 11 (art. 11)".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
24. The Government pleaded that on two grounds, which they
had raised before the Commission, Mr Sibson's application was
inadmissible by virtue of the provisions of Article 26 (art. 26)
of the Convention, which reads as follows:
"The Commission may only deal with the matter after all
domestic remedies have been exhausted, according to the
generally recognised rules of international law ..."
25. The first matter relied on by the Government - which was
denied by the applicant - was that he had not raised in the
domestic proceedings the allegation, made by him before the
Convention institutions, to the effect that his conditions of
employment at the Chadderton depot would have been less
favourable than those at the Greengate depot. Although the
Government did not accept the accuracy of that allegation, they
asserted that if it had been made in the domestic proceedings and
had been held to be well-founded, it would probably have had a
significant impact on the Court of Appeal's determination of the
question whether a mobility term was to be implied into the
applicant's contract of employment (see paragraph 14 above).
26. The second matter relied on by the Government - which was
likewise denied by the applicant - was that in the domestic
proceedings he had not contended, as an alternative to his plea
of unfair dismissal, that he had been subjected to "action short
of dismissal" (see paragraph 20 above). He had thereby,
according to the Government, decided to forgo any right to
compensation if the domestic tribunal held that he had not been
dismissed.
27. The present case involves no direct interference on the
part of the State. If the matters complained of by Mr Sibson
constituted an infringement of his rights under Article 11
(art. 11) of the Convention, the responsibility of the United
Kingdom would nevertheless be engaged if that infringement
resulted from a failure on its part to secure those rights to him
in its domestic law (see the Young, James and Webster v. the
United Kingdom judgment of 13 August 1981, Series A no. 44,
p. 20, para. 49). It appears to the Court that both preliminary
objections raise issues that are closely linked to those that
would have to be examined if it proved necessary to determine
whether there had been such a failure. It therefore joins the
Government's plea to the merits.
II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE
CONVENTION
28. Mr Sibson alleged that, since United Kingdom law provided
no meaningful remedy for a person, such as himself, who had
suffered a detriment as a result of his not belonging to a
particular trade union, he had been the victim of a violation of
Article 11 (art. 11) of the Convention, which reads:
"1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others,
including the right to form and to join trade unions for
the protection of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of
national security or public safety, 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. This Article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the
administration of the State."
This allegation was contested by the Government and was
not accepted by a majority of the Commission.
29. In arriving at its conclusion in the case of Young, James
and Webster that there had been a breach of Article 11 (art. 11),
the Court held that although compulsion to join a particular
trade union may not always be contrary to the Convention, a form
of such compulsion which, in the circumstances of the case,
strikes at the very substance of the freedom of association
guaranteed by Article 11 (art. 11) will constitute an
interference with that freedom (ibid., pp. 22-23, para. 55).
In the Court's opinion, the facts of the present case are
such that it can, as was argued by the Government but disputed
by the applicant, be distinguished from that of Young, James and
Webster. It notes in the first place that, unlike Mr Young,
Mr James and Mr Webster (ibid., pp. 23-24, para. 57), Mr Sibson
did not object to rejoining TGWU on account of any specific
convictions as regards trade union membership (and he did in fact
join another union instead). It is clear that he would have
rejoined TGWU had he received a form of apology acceptable to him
(see paragraphs 10-11 above) and that accordingly his case,
unlike theirs, does not also have to be considered in the light
of Articles 9 and 10 (art. 9, art. 10) of the Convention.
Furthermore, the present case is not one in which a closed shop
agreement was in force (see paragraph 12 above). Above all, the
applicants in the earlier case were faced with a threat of
dismissal involving loss of livelihood (see the judgment of
13 August 1981, Series A no. 44, p. 23, para. 55), whereas
Mr Sibson was in a rather different position: he had the
possibility of going to work at the nearby Chadderton depot, to
which his employers were contractually entitled to move him (see
paragraphs 10 and 14 above); their offer to him in this respect
was not conditional on his rejoining TGWU; and it is not
established that his working conditions there would have been
significantly less favourable than those at the Greengate depot
(see paragraph 25 above).
Having regard to these various factors, the Court has
come to the conclusion that Mr Sibson was not subjected to a form
of treatment striking at the very substance of the freedom of
association guaranteed by Article 11 (art. 11).
30. There has accordingly been no violation of that
provision. In these circumstances, it is not necessary to
determine the questions reserved in paragraph 27 above.
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no
violation of Article 11 (art. 11).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
20 April 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
dissenting opinion of Mr Morenilla, joined by Mr Russo, is
annexed to the judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE MORENILLA,
JOINED BY JUDGE RUSSO
1. I regret to be unable to agree with the reasoning of the
majority and with its conclusion that there has been no violation
of Article 11 (art. 11) of the Convention in the present case.
The facts, established in paragraphs 7 to 15 of the judgment
show, on the contrary, that Mr Sibson's freedom of association
was violated as a result of the compulsion exerted by his
employer threatening either to move him to another place of work
or to suspend him without pay if he did not rejoin the union that
he had previously abandoned. In my view the termination of the
applicant's contract of employment that followed his refusal to
join a union against his will amounts to a relevant and
unjustified interference with his rights under Article 11
(art. 11) for which the United Kingdom is responsible, in
accordance with Article 1 (art. 1) of the Convention, since the
infringement resulted from the failure of the United Kingdom to
fulfil its positive obligation to adapt the legal system in order
to secure that freedom.
2. To explain my position. I must say first that, in
agreement with Judges Ganshof van der Meersch,
Bindschedler-Robert, Liesch, Gölcüklü, Matscher, Pinheiro Farinha
and Pettiti in their concurring opinion in the case of Young,
James and Webster v. the United Kingdom (judgment of
13 August 1981, Series A no. 44, p. 28), my understanding of
Article 11 (art. 11) is that "the negative aspect of freedom of
association is necessarily complementary to, a correlative of and
inseparable from its positive aspect. Protection of freedom of
association would be incomplete if it extended to no more than
the positive aspect. It is one and the same right that is
involved".
Therefore, it is not a question of recognising a new
right not included in Article 11 (art. 11) , but of merely
interpreting this provision in accordance with the ordinary
meaning given to the term "freedom" in the context and in the
light of its object and purpose, in conformity with Article 31(1)
of the Vienna Convention of 23 May 1969 on the Law of Treaties
(see the Golder v. the United Kingdom judgment of
21 February 1975, Series A no. 18, p. 14, para. 29, and the
Johnston and Others v. Ireland judgment of 18 December 1986,
Series A no. 112, p. 24, para. 51). In this respect, Article 20
of the Universal Declaration of Human Rights, when defining the
right to freedom of association, expressly declares in
paragraph 2 that "no one may be compelled to belong to an
association". The omission of that clause in the European
Convention should not be interpreted, in my view, as limiting the
exercise of that right: the Convention - according to its
Preamble - was created as a step towards the collective
enforcement of certain of the rights stated in the Universal
Declaration of Human Rights with the aim of "the maintenance and
further realisation of human rights and fundamental freedoms."
It should also be mentioned that the legislation in the
member States, including the United Kingdom's Employment Act 1988
(paragraph 18 of this judgment), the recent case-law of the
Intergovernmental Committee relating to Article 5 of the European
Social Charter and Recommendation 1168 (1991) of the
Parliamentary Assembly of the Council of Europe to amend this
Article, all recognise that the right to join an organisation
also implies the right not to join.
3. In Young, James and Webster the Court nevertheless did
not consider it necessary to answer the question pleaded by the
parties as to whether or not Article 11 (art. 11) of the
Convention guarantees a "negative right" of not being compelled
to join an association. But it recalled, however (ibid., para.
52), that "the right to form and to join trade unions is a
special aspect of freedom of association", adding that "the
notion of a freedom implies some measure of freedom of choice as
to its exercise". In the same paragraph of the said judgment,
the Court also stated that even assuming, for the sake of
argument, that the general rule stated in Article 20 para. 2 of
the Universal Declaration of Human Rights was deliberately
omitted from the Convention, "it does not follow that the
negative aspect of a person's freedom of association falls
completely outside the ambit of Article 11 (art. 11) and that
each and every compulsion to join a particular trade union is
compatible with the intention of that provision. To construe
Article 11 (art. 11) as permitting every kind of compulsion in
the field of trade union membership would strike at the very
substance of the freedom it is designed to guarantee". And,
finally, as to the necessity of the measure taken against an
employee for refusing to join a specific trade union, in
paragraph 63 of its judgment the Court said that "a balance must
be achieved which ensures the fair and proper treatment of
minorities and avoids any abuse of a dominant position".
4. In my view, the arguments of the majority (paragraph 29)
not only seem to disregard an evolutive interpretation of
Article 11 (art. 11) - eleven years after the Court's judgment
in Young, James and Webster - in the light of present-day
conditions (see the above-mentioned Johnston and Others judgment,
p. 25, para. 53) according to the developments referred to above.
They also narrow the doctrine of the Court as set forth in the
previous case by diluting the concept of compulsion to one of
"treatment" and by not considering the pressure exerted on
Mr Sibson to join a union against his will, which resulted in a
loss of his livelihood, as striking at the very substance of his
freedom of association.
5. The majority has based its opinion on the fact that the
present case can be distinguished from that of Young, James and
Webster. The main arguments are that Mr Sibson did not object
to rejoining the trade union (TGWU) on the basis of any specific
conviction; that this case was not one in which a closed shop
agreement was in force, and "above all" that Mr Sibson was not
faced with a threat of dismissal involving loss of livelihood
since he had the possibility of going to work at another nearby
depot, to which the employers were contractually entitled to move
him, and where his working conditions had not been clearly shown
to be significantly less favourable. Having regard to these
various distinguishing factors, they come to the conclusion that
"Mr Sibson was not subjected to a form of treatment striking at
the very substance of the freedom of association guaranteed by
Article 11 (art. 11)".
6. This reasoning appears to me to be contradictory because
it combines opposing arguments based on the employer's right to
transfer the applicant to another nearby depot, according to
Mr Sibson's contract of employment, and on the applicant's right
not to join a union against his convictions, under Article 11
(art. 11) of the Convention. If, as the English Court of Appeal
decided (paragraph 14), the case is covered only by the law of
contract and Mr Sibson was not unfairly dismissed for refusing
to move to the nearby depot indicated by his employer since he
failed to show the prejudice that he suffered from such a
measure, no question arose as to the reasons for his resignation
when he considered himself "constructively dismissed"
(paragraph 19); this being the case the reference to Young, James
and Webster seems unnecessary since it would not be applicable.
If, on the contrary, the present case is covered by Article 11
(art. 11) as interpreted in the previous case, such circumstances
are irrelevant and the motive for his transfer becomes an
essential issue.
7. I am clearly of the view that the present case is covered
by Article 11 (art. 11) of the Convention rather than by the law
of contract;it is also my opinion that the particular
circumstances surrounding the transfer of Mr Sibson to the depot
or the kind of action brought before the United Kingdom's courts
are not relevant reasons to depart from the Court's leading case
of Young, James and Webster.
8. Several circumstances in this case are certainly
different from Young, James and Webster but, in my opinion, the
essential circumstances of both cases are the same and,
consequently, the present case merits an identical conclusion.
9. With the dissenting members of the Commission, I also
think that it is clear from the facts of this case that
Mr Sibson, like Mr Young, Mr James and Mr Webster, lost his job
without any compensation, after twelve years of working at the
Greengate depot to the "complete satisfaction" of his employer
(paragraph 7), as a direct result of exercising his right not to
belong to a trade union. I also consider that the motive of the
applicant's employer in exercising his contractual rights to
transfer the applicant is a decisive element in reaching this
conclusion. The transfer of the applicant was not made for
genuine operational reasons, "the sole purpose being to avoid a
strike" (paragraph 12) threatened by his fellow employees if
Mr Sibson did not rejoin the TGWU since they had voted for a
closed shop which had not existed at Greengate (paragraph 10).
10. As regards Mr Sibson's motives for refusing to rejoin
TGWU to the point of not accepting the pressure exerted on him
by his employer and his fellow workers and to consider himself
"constructively dismissed" (paragraph 19), it further appears
from the facts that he was not satisfied with the decision to
dismiss a complaint that he had lodged with the local branch of
the union, concerning an alleged accusation of appropriation of
the funds of the union when he was branch secretary, something
that he considered deprecatory (paragraph 9). In my view, his
objection was not whimsical or opportunist, but was based on his
sense of self-esteem and honour that, in my view, are part of the
freedom of association protected by Article 11 (art. 11) and
deserve to be treated in the same way as other conscientious
objections such as those of Mr Young, Mr James and Mr Webster.
Therefore I do not see this point as a reason for departing from
Young, James and Webster.
11. As to the seriousness of the compulsion exerted on
Mr Sibson, he was placed in the position of either renouncing his
conviction and thus being forced to join a union against his will
or being suspended without pay or being moved without any valid
operational reason to another place that he considered
detrimental.
In my view such compulsion, which caused Mr Sibson to
lose his job - like Mr Young, Mr James and Mr Webster -, cannot
be justified under paragraph 2 of Article 11 (art. 11-2) and
amounts to a breach of this provision on the grounds that the
United Kingdom failed to protect the applicant's rights.
12. Finally, I believe that the threat of a strike does not
justify the necessity in a democratic society of such a measure
as that taken by the applicant's employer having regard to the
fundamental principle of the rule of law (Klass and Others
judgment of 6 September 1978, Series A no. 28, p. 25, para. 55).
It violated a fundamental freedom of an employee and clearly
amounted to an abusive imposition of a de facto closed shop,
where it did not exist, in order to force him to act against the
dictates of his conscience. As I have already mentioned, the
Court held in paragraph 63 of its judgment in the case of Young,
James and Webster that for the rights under Article 11 (art. 11)
to be effective the State must protect the individual against any
abuse of a dominant position by trade unions.
Unlike the case of Young, James and Webster (ibid.,
pp. 16, 17 and 18, paras. 35, 39 and 44), when deciding on
Mr Sibson's complaint of unfair dismissal and reinstatement in
his former position, the Industrial Tribunal unanimously accepted
the complaint stating that "the request that he move to
Chadderton was not reasonable since it was not made for
operational reasons but solely to avoid a strike", and "that the
dismissal was unfair because its only motive was his exercise of
his express right not to belong to a union" (paragraph 12 of this
judgment). The Employment Appeal Tribunal, dismissed the
employer's appeal and found that "the Industrial Tribunal had not
erred in law, misdirected itself or reached an unreasonable
conclusion" (paragraph 13).