BROUGH v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
1. The applicant, Mr Terence Brough, is a British national who was born in 1948 and lives in Liverpool. He is represented before the Court by Mr S. Cottingham of O.H. Parsons & Partners, a firm of solicitors practising in London. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In February 2009 the Information Commissioner’s Office (“ICO”) uncovered a database managed by an organisation known as The Consulting Association (“TCA”). The database held details of the trade union membership and trade union activity of over three thousand industrial workers, predominantly from the construction sector. 5. In return for an annual fee, companies who subscribed to the database could access the workers’ details and add information to it. The database was therefore used to “blacklist” workers. In other words, companies could use it to vet job applicants and refuse employment to those listed on it. The workers on the database were named, but the companies who provided or accessed the information were listed by code number. The ICO has identified and released some of the names of these companies but not all of them. 6. The applicant is a bricklayer who has worked in the construction industry for over thirty years. During that time he was an active member of an independent trade union and between 1976 and 1982 he served as a union shop steward representing his fellow workers’ interests vis-à-vis their employer and organising industrial action. 7. On 11 May 2009 the applicant discovered that his name was on the TCA database. 8. The first entry is dated 10 July 1985. It notes that on 3 March 1976 a company identified as “1194” reported the applicant to be a “militant troublemaker”. The same 1985 entry records that on 12 January 1982 another company identified only as “1158” also reported the applicant to be a “militant troublemaker”. 9. The next entry, which is also dated 10 July 1985, records that a company identified as “250” checked the applicant’s details and that “L5 informed company”. 10. Two further entries on 2 June 1988 and 12 July 1988 record that the applicant’s details were checked by companies identified as “7013/1” and “7051/9”. 11. The ICO was unable to identify the companies referred to as 250, 1158 and 1194. Nor could it confirm the identity of L5. However the two companies that checked the applicant’s details in 1988 were identified. 12. Between June and August 1988 the applicant had been out of work. During this time he had applied for jobs with both of the companies identified by the ICO. In both cases his application was unsuccessful. 13. There is no record of any contemporaneous complaints about the applicant’s work, professional performance or conduct. 14. Following the ICO disclosure the applicant brought a claim against the two identified companies under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) on the ground that they had unlawfully refused to offer him employment because of his trade union activities and/or membership. 15. Both respondent companies submitted, inter alia, that the claim was brought out of time as the 1992 Act required all claims to be brought within three months of the date of the relevant incident, unless the limit was extended by the Employment Tribunal. 16. The application was heard on 22 July 2010. At the hearing the respondents raised a further argument: that section 137 of the 1992 Act had only come into force on 16 October 1992 and, as such, the actions complained of had not been unlawful at the material time. The applicant’s representative conceded the point and the claim was struck out on that basis. The applicant was ordered to make a contribution towards the respondents’ costs of GBP 1,288. 17. On 17 September 2010 the applicant sought leave to appeal against the order to the Employment Appeal Tribunal (“EAT”). In the application he alleged that there had been a violation of his rights under Article 11 of the Convention. 18. The application for leave to appeal was refused on the papers on 9 February 2011. The judge held that: “The argument in the Notice of Appeal was not raised before the Employment Tribunal and cannot therefore be raised on appeal. In any event, the failure [if it be that] on the part of the Government to legislate to give effect to an Article 11 right could not give the [applicant] a cause of action against the Respondent.” 19. The applicant did not pursue any further appeal, although the possibility did exist for a further oral hearing under Rule 3(10) of the EAT Rules. 20. Limited protection was first introduced under section 1 of the Employment Act 1990 which made it unlawful to refuse a person employment on the grounds of their membership of a trade union. This provision was consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the relevant provisions of which came into force on 16 October 1992. 21. Under section 137 of the 1992 Act it is unlawful to refuse a person employment for reasons related to the fact that he or she is a member of a trade union. Pursuant to subsection (2) any person who alleges that he or she was unlawfully refused employment can complain to an Employment Tribunal. Section 140 of the 1992 Act allows the Employment Tribunal to order such a remedy as it considers “just and equitable”, including the payment of compensation or a recommendation to the respondent employer. 22. Under section 139 of the 1992 Act a complaint under section 137 must be presented to the Employment Tribunal before the end of a period of three months from the date of the conduct to which the complaint relates. The Tribunal has a power under subsection (1)(b) to extend the period by any further period that it considers reasonable. This power may be exercised where the Tribunal is satisfied that it was not “reasonably practicable” for the claimant to present the complaint before the end of the three-month period. 23. Pursuant to section 7 of the Human Rights Act, a person can bring proceedings against a public authority for acting incompatibly with a Convention right. However, such proceedings cannot be brought in the Employment Tribunal. Moreover, the Tribunal does not have jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act. Nevertheless, pursuant to section 3 of the Human Rights Act the Tribunal is required “so far as possible” to read and give effect to primary legislation in a way which is compatible with Convention rights. Furthermore, it is required to take into account any judgment, decision or opinion of the Court insofar as it is relevant to the proceedings when determining a question which has arisen in connection with a Convention right (section 2 of the Human Rights Act), and it is unlawful for the Tribunal, as a public authority, to “act in a way which is incompatible with a Convention right” (section 6 of the Human Rights Act).