PROCEDURE

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.

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).

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).

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.

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:

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;

for the Commission Mr B. Marxer, Delegate;

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.

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

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.

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.

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.

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“.

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

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).

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.

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.

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.