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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: 17 EHRR 193, (1994) 17 EHRR 193, [1993] ECHR 18

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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).