61975C0110(01)
OPINION OF MR ADVOCATE-GENERAL WARNER
DELIVERED ON 10 NOVEMBER 1976
My Lords,
It appears to me to follow from the terms of the Interlocutory Judgment delivered in this case by the Full Court on 15 June 1976, read in the light of the pleadings, that two main questions now fall to be decided by Your Lordships, that is to say:
(1)
Was the termination of Mr Mills's contract by the defendant Bank contrary to the individual terms of that contract or to any of the provisions of the Staff Regulations of the Bank that were deemed to be an integral part of it? In particular did such termination constitute, as Mr Mills alleges, a ‘disguised disciplinary measure’ contrary to those Regulations?
(2)
If not, did such termination nonetheless exceed the limits of what is permitted by the principles common to the laws of the Member States in the matter of contracts of employment? In other words did it constitute unfair dismissal?
If either of those questions were to be answered in the affirmative, Your Lordships would then have to consider what relief it would be appropriate in the circumstances to grant to Mr Mills.
I need not, I think, detain Your Lordships for long on the first question — in particular because I apprehend that it is unnecessary for me to state again the relevant circumstances or provisions in so far as they are set out or summarized in the Opinion that I delivered to the Full Court on 6 May 1976.
As I showed in that opinion those circumstances were such that the Bank was entitled, under the combined effect of Articles 16 and 17 of its Staff Regulations, to terminate Mr Mills's contract at three months' notice. Mr Mills did receive that notice. He was not made the subject of any of the disciplinary measures envisaged by Article 38 of the Staff Regulations. In particular he was not summarily dismissed. Articles 38 and 40, which Mr Mills submitted had been infringed in his case, did not therefore apply.
It follows, in my opinion, that the first question that Your Lordships have to decide should be answered in the negative.
I turn to the second.
As to this, the case for the Bank is that the dismissal of Mr Mills was not unfair because the reasons for it were that experience had shown that the English section of its translation service was over-staffed and that Mr Mills was considered by his superiors to be the least satisfactory member of that section. The Bank was therefore within its rights in deciding to reduce the staff of the section by one and in deciding, at the same time, that Mr Mills should be the one to leave.
It was submitted on behalf of the Bank that the onus was on Mr Mills to prove that the reasons for his dismissal were in truth otherwise. I think that that submission should be rejected. In my previous opinion I had occasion, in view of the terms of Article 44 of the Staff Regulations of the Bank, to consider certain aspects of the laws of the Member States. It seems to me that such a consideration is called for again here and that it leads to the conclusion that, in those Member States, at all events, where express provisions exist on the point, most of them place on the employer the onus of proving the reasons for an employee's dismissal — see as to the law of Germany the Kündigungsschutzgesetz of 25 August 1969, section 1 (2), as to law of Great Britain the Trade Union and Labour Relations Act 1974, Schedule 1, para. 6, and as to the law of Italy the Norme sui Licenziamenti Individuali of 15 July 1966, Article 5. In French law, the relevant statutory provision, Article L 122-14-3 of the Code du Travail, is not in itself so clear, but it has been interpreted by the Courts as placing the onus of proof on the employer: see the decision of the Cour d'Appel of Nancy in Société Studier v Dalle, reported in Droit Social 1975, p. 531, and the commentary thereon in the same publication, where (at p. 535) reference is made to unreported decisions of the Cour d'Appel of Lyon to the same effect.
I am therefore of the opinion that the onus was on the Bank to show that the reasons for Mr Mills's dismissal were as it states.
I am however further of the opinion that, if such were indeed those reasons, his dismissal cannot be held to have been unfair. Consistently with paragraph 2 (1) of Recommendation 119 of the General Conference of the International Labour Organization, which I quoted in my previous opinion (at p. 21), the laws of all the Member States appear either expressly or implicity to recognize as valid reasons for a dismissal reasons ‘connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’. It would indeed be surprising were it otherwise.
An argument was put forward on behalf of Mr Mills to the effect that the Bank, in selecting, from among the staff of its English translation section, the person whose services should be dispensed with, should have had regard to the age and length of service of the members of the section respectively, and to their family commitments. I do not doubt that an employer who is faced with a need to reduce staff should, all other things being equal, have regard to such factors. There are indications that the laws of certain Member States, in particular France and Germany, positively require such factors to be taken into consideration. But, except perhaps where certain collective agreements relating to collective redundancies apply, I do not think that such factors can ever be dominant. The Bank points out that it took them into account, in Mr Mills's case, when, in the letter giving him notice (Annex 1 to the application) it offered, by paragraph 2, to release him from his obligation to render service to the Bank during the three-months' period of his notice, so as to make it easier for him to find new employment, and offered, by paragraph 8, to go on paying him, even after the expiry of that period of three months, until he had found new employment, subject to the proviso that this extension should not continue beyond 31 January 1976.
So I turn to the question whether the Bank has made good its allegation that the reasons for Mr Mills's dismissal were as it states.
That question falls into two parts.
There is first the ‘sub-question’, if I may so call it, whether the prime reason for Mr Mills's dismissal was that the English section of the Bank's translation service was overstaffed.
It is common ground that the section, at the material time, consisted of five people, Mr T., Mr D., Mr Mills, Mr Bearne and Mr Butler, in that order of seniority. According to the Bank, Mr T. was in charge of the section, and he and Mr D. were revisers. The other three members of the section were translators.
If I may, for a moment, digress, Mr Mills denies that there was ever any such hierarchy in the section. His denial rests, as I understand it, on the fact, which is admitted by the Bank, that no formal document was ever brought into existence prescribing that hierarchy. That it had been laid down, albeit by word of mouth, by the responsible authorities in the Bank, is clear enough from the documentary evidence before the Court. But Mr Mills seems to have resented being placed under the authority of Mr T. and of Mr D. otherwise than by a formal document. His resentment at this, together with a conviction on his part that his qualities as a translator rendered revision of his translations superfluous, are, clearly, among the causes of the friction that I shall have to describe when I come to deal with the second ‘sub-question’.
By way of substantiation of its allegation that the English section was overstaffed, the Bank mentions that, at the time of the enlargement of the Community, it was thought desirable to bring the strength of that section up to the same level as that of other language sections, particularly the German. Subsequently it appeared that English was being used, as a working language, both by the staff of the Bank and by those with whom it had to deal, to an extent that had not been foreseen, so that fewer translations into English were needed than had been expected. The result was that, for instance, the English section, with the same number of members as the German, produced, in the first six months of 1975, 21 % fewer pages of translation. It was producing on average 1·52 pages per head per day.
The matter was mentioned in a note written by the Secretary-General of the Bank, Mr Lenaert, for its Management Committee, on 23 July 1975. That note (an extract from which is in the bundle of documents produced by the Bank at the Court's request) stated:
‘Il s'avère qu'au départ, le volume des travaux de traduction vers l'anglais a été surestimé, ce qui fait qu'après une première période d'élan et de mise en route, en dépit de l'extension des activités de la Banque, ce volume ne cesse de diminuer.
Pour les quatre derniers mois, les traductions vers l'allemand, effectuées par le même nombre de traducteurs et de réviseurs, représentent plus que le double de celles demandées à la section anglaise.
—
884 pages produites par la section allemande
—
427 pages produites par la section anglaise, représentant moins que le quart des 12 derniers mois.
Ceci amène à la conclusion que la section anglaise est actuellement “surdimensionnée”.’
As an extract from the minutes of the meetings of the Management Committee (which is in the same bundle of documents) shows, it was after considering that note that the Committee decided to reduce the staff of the English translation section to four and to give notice to Mr Mills.
At the hearing Counsel for Mr Mills submitted that the performance of translators ought not to be judged by reference to statistics of pages produced per day. But, my Lords, we all know that, in all the Community institutions, such statistics constitute an important, albeit not the exclusive, measure of the work of translators. We also know, if only by reference to what is expected of the Translation Service of the Court, that an output of 427 pages in four months from a section of five, making an average of less than 22 pages per month per person, was derisory.
In my opinion the case for a reduction in the staff of the Bank's English translation section in July 1975 was overwhelming.
Indeed that case was not, except in the way I have described, seriously challenged on behalf of Mr Mills.
The points made on his behalf in this regard (apart from the point that, if anyone had to go, it should have been someone junior) were these.
First it was said that, at the time when Mr Mills entered the service of the Bank, he was given an assurance by the Director of Personnel of the Bank that, subject to his performing satisfactorily during his probationary period of six months, he would find at the Bank stable employment. It seems odd that Mr Mills should have sought, or attached any importance, to such an assurance, because, at the time (May 1973) he was on sabbatical leave from the Polytechnic of the South Bank, London, where he held a permanent appointment as Senior Lecturer in French, and he had just written to the Director of that Polytechnic asking for one year's extension of that leave so that he could spend it gaining experience at the Bank (Annex 4 to the Reply). The implication was that, after that year, he would return to the Polytechnic to teach. Be that as it may, however, no such assurance given by the Director of Personnel could contradict the terms of Mr Mills's contract with the Bank, incorporated in his letter of appointment and in the Staff Regulations, both of which he had, as asked, signed as ‘Read and Approved’ — (see Annexes I and II to the Defence).
Secondly it was said on Mr Mills's behalf that, when it became apparent that there would be a Referendum in the United Kingdom about that country's membership of the Community, the Management Committee of the Bank, in order to dispel restiveness among its British staff, authorized an announcement to the effect that such staff would be able to pursue normal careers at the Bank despite any withdrawal of the United Kingdom from the Community. But that announcement can only have meant that the withdrawal of the United Kingdom from the Community would not, of itself, entail any dismissal of British staff. It cannot have gone beyond that. In any case it is clear that Mr Mills did not rely upon the announcement, for it was only after the result of the Referendum was known, and after a further extension of his sabbatical leave, that he finally resigned his appointment at the Polytechnic of the South Bank — (see Annexes 12, 10 and 11 to the Reply).
Thirdly it was said on Mr Mills's behalf that the Bank had never before dismissed any member of its staff. Reliance was placed in this connexion on a Note addressed to the staff generally by representatives of it known as ‘Les Personnes de Confiance’ after a meeting between themselves on the one hand and the President of the Bank, a Vice-President, the Secretary-General and the Director of Personnel on the other hand (Annex 9 to the Reply). This Note recorded, among other things, that dismissals from the staff of the Bank had always been very rare and that it was the policy of the Bank that such a dismissal should remain an exceptional event. My Lords, to say of a dismissal that it was a very rare, or an exceptional or even an unprecedented event, is not to say that it was unfair.
Lastly, on this part of the case, it was submitted on behalf of Mr Mills, that even if it was proper for the Bank to reduce the staff of its English translation section, and to do so by subtracting him from it, the Bank should not have dismissed him, but should have found him another job elsewhere. There is however no evidence that any job for which Mr Mills's qualifications would have suited him was available anywhere else in the Bank. It is to be observed in this connexion that, as appears from Mr Mills's curriculum vitae (Annex 1 to the Reply), his whole career, apart from his experience as a translator for a year at the Council and thereafter at the Bank, had been spent in teaching.
So I turn to what I have called the second ‘sub-question’, which is whether the reason why Mr Mills was selected as the person to leave the staff of the English translation section was that he was the least satisfactory member of it.
As to this the Bank relies on two points, first that Mr Mills was considered to be the least competent translator in the section and, second, that his attitude and behaviour were such as to cause friction within the section which impaired its efficiency.
The evidence on those two points, in so far as it consists of reports on Mr Mills made by his superiors, and of material relating to the events surrounding the preparation of the last of them, is intermixed.
Chronologically the first item of evidence is the report dated 6 February 1973 which was made on Mr Mills, at the end of his probationary period on the staff of the Council, by the Head of the English Section of the Council's Translation Service (Annex 2 to the Reply). That report described Mr Mills's linguistic attainments in English, French and German, as ‘very good’, his intelligence, initiative and standard of work as ‘good’, and his readiness to cooperate and his punctuality as ‘excellent’. The Head of Section's ‘General Remarks’ were: ‘Mr Mills is proving to be a valuable member of the English Section. He is conscientious and reliable in all he does’.
The second item of evidence is a testimonial dated 11 July 1973 signed by the same Head of Section (Annex 3 to the Reply). It is in these terms: —
‘To whom it may concern
Mr J. Mills was employed by the General Secretariat of the Council as an English translator from September 1972 until June 1973, when he left us at his own request.
During this period, Mr Mills was in fact spending a ‘sabbatical’ year on leave from the Polytechnic of the South Bank (London), where he was on the teaching staff of the Department of Languages.
Mr Mills proved himself to be a sound translator, with a good sense of style. He was always very punctual and conscientious in performing his duties and was on goods terms with his colleagues and his superiors.’
The third item of evidence is the first report made on Mr Mills by Mr T. (It is on Mr Mills's personal file and was also included in the bundle of documents to which I have referred). That report was dated 19 December 1973, that is to say shortly before the end of Mr Mills's probationary period with the Bank. In order to understand it, one must bear in mind that five possible ratings are provided for on the form on which reports on members of the Bank's staff are made. These are:
5
— Excellent
4
— Very good
3
— Good
2
— Adequate
1
— Inadequate
Rating No 3 ‘Good’ is thus the average.
Mr Mills's report was made in French. Under the heading ‘Compétence’, his ‘Connaissances nécessaires à l'emploi exercé’, his ‘Faculté d'expression’ both ‘orale’ and ‘écrite’, his ‘Faculté de compréhension et jugement des problèmes’ and his ‘Initiative’ were rated good; his ‘Sens pratique’ and his ‘Faculté d'organisation du travail’ were rated adequate. Under the heading ‘Rendement’, his ‘Application’ was rated very good, his ‘Qualité du travail’ good, and his ‘Productivité’ adequate. Under the heading ‘Conduite’, his ‘Ponctualité’ was rated excellent, his ‘Rapports dans le service’ and ‘Rapports avec les tiers’ were rated good and his ‘Sens des responsabilités’ was rated adequate. His knowledge of French was rated very good and his knowledge of German good. Under ‘Remarques générales’, Mr T. wrote this:
‘Il travaille assidûment. S'il commet quelque-fois des erreurs, celles-ci semblent découler d'un excès de zèle plutôt que d'un manque d'attention, bien qu'il ne travaille pas très vite.’
In interpreting that report, regard shoud, I think, be had to the fact that it was at Mr T.'s suggestion that Mr Mills had been recruited onto the staff of the Bank. Mr T. must accordingly have started off well disposed towards Mr Mills. Yet one senses slight disappointment creeping in with Mr T.'s references to Mr Mills sometimes making mistakes and not working very fast. On the other hand there is no sign in this report of the friction that was to develop during the following year. It seems that this was because during his probationary period Mr Mills accepted the authority of Mr T. and Mr D. Nor is there in this report any attempt at a comparison between the performance of Mr Mills and that of the other translators in the English section. Probably such a comparison would have been premature. Mr Bearne had joined the section only on 16 October and Mr Butler only on 16 November 1973.
On 15 January 1975 Mr T signed a second report on Mr Mills. (This too is on Mr Mills's personal file and in the bundle to which I have referred.) Most of the ratings that Mr T. awarded to Mr Mills in this report were less favourable than the ones he had awarded to him in the previous one. Again the report was in French. For ‘Connaissances nécessaires à l'emploi exercé’, for ‘Faculté d'expression orale’, for ‘Initiative’ and for ‘Rapports avec les tiers’, he retained the rating good, and for ‘Productivité’ he retained the rating adequate. But ‘Ponctualité’ which had been rated excellent in the previous report was now rated only good; ‘Faculté d'expression écrite’, ‘Faculté de compréhension et jugement des problèmes’, ‘Application’ and ‘Rapports dans le service’ were now rated only adequate; and ‘Sens pratique’, ‘Faculté d'organization du travail’, ‘Qualité du travail’ and ‘Sens des reponsabilités’ were now rate inadequate. On the other hand Mr Mills's knowledge of German was uprated from good to very good. Under ‘Remarques Générales’ Mr T. wrote:
‘Il ne mérite pas de promotion. A l'heure actuelle, je ne peux pas recommander qu'il soit élevé à un grade supérieur. Je lui ai déjà annoncé à plusieurs reprises que son travail n'est pas satisfaisant. Il est de loin le membre le plus faible de notre équipe, même compte tenu de sa connaissance de la langue allemande. Ce qui est pire, le mieux qu'on pourrait dire de ses relations avec ceux qui révisent son travail, c'est qu'il laisse beaucoup à désirer du côté de la générosité.
I recommend that he be given a 5-month trial period to improve on his performance.’
The reference there to the possibility of ‘promotion’ was a reference to the biennial increments provided for by Article 22 of the Staff Regulations of the Bank, which is in these terms:
‘Members of staff in Groups II, III and IV [Mr Mills was in Group II] shall receive an automatic advance in incremental level every two years. In exceptional circumstances, this advancement may be anticipated by not more than six months and delayed by not more than one year.’
On 17 January 1975 Mr T. visited Mr Mills in his office to inform him of that adverse report. We have Mr Mills's account of that interview in a letter that he wrote to Mr Lenaert on 20 January 1975 (Annex 19 to the application). From that account it seems that Mr T. gave Mr Mills a factual summary of the contents of the report and added that he was ‘perfectly satisfied with the other two translators’ in the section and that Mr D. had agreed with him ‘on this’. According to Mr Mills, Mr T. then said: ‘I know that you will disagree … but I must warn you not to try to screw me, because it's you that'll get screwed’. I confess to Your Lordships that the use of the verb ‘to screw’ in such a context is novel to me. Mr Mills says that he ‘made a token reply, refusing to quarrel’ but immediately decided to see Mr Lenaert as soon as possible, to inform him ‘of the unjustified attack on my professional competence and to pinpoint the motives behind that attack’.
It is clear from the first paragraph of that letter that Mr Mills did have an interview with Mr. Lenaert and that it was following that interview that he wrote the letter. The letter concludes in the following terms:
‘The timing is highly significant, I believe; it coincided with the completion of the questionnaire recently circulated for O & M purposes, enquiring into functions and responsibilities. Mr T.'s unfounded comments were, I am convinced, an integral part of a concerted attempt to establish a formal hierarchy in the English translation section (as described in my reply to the abovementioned questionnaire).
Without commenting on Mr T.'s personality, I have the impression also that he resents my familiarity with German perhaps, or my greater age, or my good relationships with other Bank personnel … or whatever.
Nevertheless, even such motives would not condone such unbecoming behaviour. It is not very fair play, if I may say so.
I am sure you will understand that I cannot allow this defamation, by a person whose motives in this instance are questionable in the extreme, to pass unquestioned and unrevoked.’
That letter affords clear evidence, first, of Mr Mills's refusal to accept any ‘formal hierarchy’ in the English translation section and, second, of his dislike, to put it at its lowest, of Mr T.
In February 1975 there occurred an incident on which much reliance was placed on behalf of Mr Mills. Mr Mills's account of it (so far as it goes) is contained in a letter dated 18 February 1975 addressed by Mr Mills to Mr D. (Annex 18 to the application). According to Mr Mills, Mr D. had asked him ‘point-blank’ that morning whether a translation that Mr Mills claimed to have made of a long document from German into English had been his own work. Still according to Mr Mills, Mr D. told him that he (Mr D.) had approached Mr Bearne and had asked him if he had contributed to this translation as it seemed to be ‘in his style’. The letter does not record what Mr Bearne is alleged to have answered. It concludes: ‘This allegation is as preposterous as it is defamatory: it also constitutes grave professional misconduct’.
On 21 February 1975, Mr Mills complained about the matter to Mr Lenaert (Annex 17 to the application). From what he told Mr Lenaert one learns that Mr D. had refused to accept his (Mr Mills's) letter. As we have not heard Mr D. we do not know why he did so (if indeed he did do so). It may well have been because the letter was rather tactlessly addressed to ‘W. B. D., Translator’; or it may have been because Mr D. did not think it appropriate that Mr Mills should communicate with him by letter; or it may have been because Mr D. had been satisfied with Mr Mills's oral answer to his question and considered the incident closed. One can but speculate.
Whatever Mr D. thought, Mr Lenaert heeded Mr Mills's complaint. He caused the translation in question to be examined by an independent reviser (we are not told whom, but presumably he was from another section) who concluded that there was insufficient evidence to sustain Mr D.'s ‘accusation’. So, it is said on behalf of the Bank, the matter was considered to be disposed of and it was never held against Mr Mills. It would, I think, have been better, having regard to Mr Mills's evident sensitiveness, had he been told explicitly that he had been cleared. But I do not think that the Bank can be criticized beyond that. The real significance of the incident, to my mind, is that it evinced friction, not only between Mr Mills and Mr T, but also between Mr Mills and Mr D.
A further incident of which Mr Mills complains occurred on Saturday 5 April 1975. Again we have no-one but Mr Mills's account of it. This is contained in a Note to Mr Lenaert which Mr Mills drafted on Tuesday 8 April 1975 but which he decided, in the end, not to send (Annex 15 to the application). According to Mr Mills he called at the offices of the English translation section that Saturday morning to collect some personal papers and there found Mr T., who asked him ‘what the hell’ he was doing there. Of course when an Englishman asks another ‘what the hell’ he is doing in the office on a Saturday morning, the significance of the question depends entirely on the tone of voice in which it is uttered. We know nothing about Mr T.'s tone of voice on that occasion. At all events it seems that Mr Mills answered that he had come to collect some papers, whereupon Mr T. went back into his own office and Mr Mills left the premises. On Tuesday 8 Mr Mills discovered that late on the previous Friday 12 pages of material had been sent to the English section to be translated over the week-end. Thereupon he remonstrated with Mr T., asking why he had not been asked to help. To this, according to Mr Mills, Mr T. replied ‘I think it would have been extremely unhelpful … you know my feelings about that’. To Mr Mills that incident showed that he was being excluded from the team. To my mind it does no more than to confirm that there was friction between Mr Mills and Mr T., and also to confirm that Mr Mills was capable of adopting an unreasonable attitude.
In the meantime Mr Lenaert had been following up the question of Mr Mills's adverse report. He ascertained that Mr D. agreed with Mr T. about it. He then discussed it with the Director of Personnel and with Mr T. himself. As a result Mr T. was persuaded to improve his rating of Mr Mills's ‘Faculté de compréhension et jugement des problèmes’ from adequate to good. Otherwise Mr T. stuck to what he had said.
On 16 April 1976 Mr Lenaert added his own remarks to Mr Mills's report. He wrote:
‘Cas difficile, d'autant plus que c'est Mr T. qui nous a signalé la candidature de Mr Mills — et que l'appréciation établie par Mr T. après les six mois d'essai n'était pas défavorable. Il se peut également que l'imprécision quant aux attributions de Mr T. en tant que réviseur ait causé une certaine tension, Mr Mills prétendant qu'après 6 mois de période d'essai ses traductions auraient été acceptées telles quelles. D'autre part, le tempérament et le caractère semblent avoir joué un certain rôle; ainsi que je l'ai dit dans l'appréciation de Mr T., il se pourrait que Mr Mills se soit un peu formalisé à cause d'un langage plutôt rude et pas trop académique.
Si les affirmations de Mr T. se confirment quant à la compétence et la qualité des travaux, il faudra bien se décider, peut-être après un tout dernier avertissement, à se séparer de Mr Mills.’
The reference there by Mr Lenaert to what he had said in Mr T.'s own report prompted the Court to ask the Bank, under Article 45 (2) (b) of the Rules of Procedure, to produce that report, on the simple principle that the Court may always order production of a document that is referred to in a document that is itself in evidence. The Bank evinced some reluctance to produce it. Although its submissions on the matter were not very clear, I think it can be inferred that it did so on two grounds, first that the document was irrelevant and second that it was confidential. Nonetheless, at the Court's insistence the Bank produced the document. Your Lordships and I have seen it. The incidental question now arises whether it should be disclosed to Mr Mills and his advisers, in which case the parties would have to be recalled for further argument.
My Lords, I do not doubt that the document is relevant, if only marginally, so that it cannot be excluded on the ground of irrelevance. Nor do I doubt that the mere fact that a document is confidential, or is described as such, is insufficient to render it privileged from disclosure in this Court. As the House of Lords pointed out in the leading case of Conway v Rimmer [1968] A.C. 910, there is in such a situation as this a clash between two aspects of the public interest (1) the public interest that justice should not be denied to anyone by the exclusion of relevant evidence from legal proceedings and (2) the public interest that the proper functioning of public institutions should not be impaired by the disclosure of confidential matters. The House there adopted the principle that it was for the competent Court in each case to weigh those conflicting aspects of the public interest and that, where there was doubt, that Court should itself look at the document in question and decide whether or not its evidentiary value outweighed the harm that its disclosure might do. Your Lordships may agree with me that that is helpful guidance. If so, Your Lordships may further agree with me that the contents of Mr T.'s report do not in fact tell us anything that we do not already know from other evidence, and that, in the circumstances, justice does not require its disclosure. In saying this I have in mind, though I do not of course regard it as decisive, that, as we were repeatedly told, it is not the practice of the Bank to disclose to members of its staff the contents of reports made on them, so that even Mr T. does not know what is in his report. That practice differs of course from that enjoined on the Community Institutions properly so-called by Article 43 of their Staff Regulations. I do not think it is for me, at all events in this case, to express any view as to which practice is the better, or as to whether some half-way house between them would be preferable to either.
So far as the events leading up to Mr Mills's dismissal are concerned, there is, I think, only one other fact that is material. This is that Mr Mills manifested his animosity to Mr T. by posting up in his office, and on the door of his office, quotations such as:
‘Those he commands move only in command. Nothing in love: nor does he feel his title hang loose about him like a giant's robe upon a dwarfish thief. (Macbeth)’
and
‘When a stupid man is doing something he is ashamed of, he always says that it is his duty. (G. B. Shaw)’
and there were others.
Mr Mills does not deny that he did this. He pleads that the posting up of ‘satirical’ matter was general practice throughout the Bank and he produces examples of funny pictures and sayings that were posted up in various departments of the Bank (Annex 8 to the Reply). An examination of these shows that they were quite different in character from the quotations chosen by Mr Mills: no-one with a sense of humour could have been offended by them.
On behalf of the Bank it was said that the friction between Mr Mills on the one hand and Mr T. and Mr D. on the other created such an unpleasant atmosphere in the English translation section that even the secretaries wanted to leave. I can readily believe it, though it was contested by Mr Mills on whose behalf the Court was urged to call Mr Bearne and Mr Butler as witnesses to show that any unpleasant atmosphere in the section was due to the attitude of Mr T. and Mr D. towards their colleagues. This the Court, in my respectful opinion rightly, declined to do. This is not a trial of any of the individuals constituting the English translation section. The question that the Court has to determine is whether the Bank has shown that it had valid reasons for giving notice to Mr Mills.
As to that, I can, I think, sum up the effect of the relevant evidence as follows. It was clear that Mr Mills was regarded by those of his superiors who were best able to judge, and in whom the Bank had confidence, namely Mr T. and Mr D., as the least competent of the translators in the English section. There was clearly friction between Mr Mills on the one hand and Mr T. and Mr D. on the other, of a kind of which no employer could tolerate the continuance. There was evidence that Mr T. was partly to blame for this friction, in that he was occasionally rough-tongued, but it was obvious that a substantial cause of the friction was Mr Mills's refusal to accept the authority of Mr T. and Mr D. and his unreasonably hostile attitude towards, them.
In those circumstances the Bank was, in my opinion, amply justified in concluding that Mr Mills must go. Indeed, to my mind, the Bank would probably have been justified in reaching that conclusion even in the absence of any need to reduce the staff of the English translation section.
That is really the end of the case, but I must deal with two other points which were raised on behalf of Mr Mills.
First it was said on his behalf that he was denied any opportunity of being heard either as to the contents of his adverse report or as to the justification for his dismissal.
As to the contents of his adverse report, I have already mentioned the practice of the Bank of not disclosing to members of its staff the contents of their reports, and indicated that I do not think it necessary to pass judgment on that practice in this case. The fact is that Mr Mills, according to his own account, was told by Mr T., albeit in general terms, about the contents of his report, that he was thereby enabled to express his views on it to Mr Lenaert, and that Mr Lenaert did, as a result, go into the matter carefully with Mr D., the Director of Personnel and Mr T. himself.
As to the justification for Mr Mills's dismissal, it is to be observed that, in the sphere of ordinary contracts of employment, as distinct from the sphere of what is conveniently called in French ‘la fonction publique’, there is only one Member State, namely France, where the law requires an employer to hear an employee before giving him notice — see Article L 122-14 of the Code du Travail — but, even there, the only consequence, if the employer fails to comply with that requirement, is that he may be ordered to pay to the employee up to one month's salary by way of penalty. The furthest that the law of any other Member State goes — I leave aside of course cases of summary dismissal for misbehaviour — is to require the employer to state the reasons for the dismissal if he is called upon to do so, particularly in legal proceedings.
Here the President of the Bank, in the letter that he wrote to Mr Mills on 29 July 1975 giving him notice (Annex 1 to the application), confined himself to saying that Mr Mills's contract was being terminated ‘for reasons relating to the internal organization’ of the Bank. But when, following the receipt of that letter, Mr Mills went to see Mr Lenaert, the latter explained the reasons to him more fully and they have of course been developed in detail by the Bank in these proceedings. It might, I think, have been better if Mr Mills had been sent for by (say) Mr Lenaert, and had had the reasons for his proposed dismissal explained to him, before written notice was actually given to him. But the fact that this was not done does not, in my opinion, involve any breach of the law on the part of the Bank. It must moreover be borne in mind that Mr Mills had had an interview about his position with the Director of Personnel of the Bank as recently as 7 July 1975, at which it is clear that he had been able to express his views (see Annex 13 to the application).
Secondly it was said on Mr Mills's behalf that the Bank had been in breach of its duty to assist him against threats emanating from his superiors. This point, which was not much developed, seems to have been based on a supposed principle of law akin to that enshrined in Article 24 of the Staff Regulations of Community Officials. It is no doubt the duty of any good employer to investigate complaints by members of his staff against their superiors. This, in the present case, Mr Lenaert, on behalf of the Bank, seems to have amply done. Nor does it appear to me that Mr Mills received any threats, as distinct from warnings, unless it be in Mr T.'s alleged reference to ‘screwing’.
Lastly I should mention that, at the hearing, Counsel for Mr Mills relied on a number of new facts, which he had not pleaded. The Court cannot of course take any notice of these. In any case they seemed to me to be of only peripheral relevance.
In the result I am of the opinion that this action should be dismissed with, having regard to Article 70 of the Rules of Procedure, no order as to costs.