CASE OF SIBSON v. THE UNITED KINGDOM
Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 11
C. Russo;John Freeland
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. 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. 16. The relevant domestic law in force at the time of the events giving rise to the present case may be summarised as follows. 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). 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). 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). 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.