Smith v United Kingdom - 54357/15 (Admissibility) [2016] ECHR 805 (20 April 2017)

FIRST SECTION

DECISION

Application no. 54357/15
David SMITH
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 28 March 2017 as a Committee composed of:

          Kristina Pardalos, President,
          Robert Spano,
          Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 29 October 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr David Smith, is a British national, who was born in 1965 and lives in Goldhanger.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The Consulting Association’s database

3. In February 2009 the Information Commissioner’s Office (“ICO”) uncovered a database managed by an organisation which worked in secret, known as The Consulting Association (“CA”). The database held details of the trade union membership and trade union activity of over three thousand industrial workers, predominantly from the construction sector.

4. 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.

2. Impact of “blacklisting” on the applicant

5. The applicant was an agency worker who worked in the construction industry from 1988, initially as a site engineer and progressing to site agent. He was active in his trade union, the Union of Construction Allied Trades and Technicians, and held a number of offices including shop steward and safety representative.

6. From mid-1999 the applicant was unable to find regular work. As a consequence, in 2001 he retrained and secured a post as a lecturer in health and safety law.

7. At his request, Mr Smith received his file from the ICO on 23 April 2009. It was 36 pages long and covered his trade union activities from 1992 to 2004, including as an elected trade union health and safety representative. It also included his CV, date of birth, National Insurance number, details of his employment history and allegations that he had made unwarranted safety inspections and filmed working conditions with footage later appearing on television.

3. Domestic proceedings

8. Following the ICO disclosure on 15 July 2009, the applicant brought a claim against three construction companies in the Employment Tribunal (“ET”) on the basis that by providing information about him to the CA, they had subjected him to detrimental treatment by virtue of his trade union and health and safety activities. He argued that he was penalised for taking part in the activities of a trade union contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) and for exercising the functions of a safety representative under Section 44 of the Employment Relations Act 1996 (“the ERA”).

9. The applicant’s claims were dismissed by the ET on 23 January 2012 because the 1992 Act and the ERA protected the rights of “employees”, whereas the applicant had worked for the companies under contract from a third party agency. He did not therefore have the status of an employee. The 1992 Act was amended in 2004 to extend its protection to “workers” but this change came too late to benefit the applicant.

10. In its conclusion the Employment Tribunal stated (§ 71):

“We have reached our conclusions with considerable reluctance. It seems to us that [the applicant] has suffered a genuine injustice and we greatly regret that the law provides him with no remedy. We hope that he can take some comfort from the fact that the wrongdoing of which he complains has been exposed and punished and legislation passed designed to protect others from the misfortunes which he has experienced.”

11. On 17 January 2014, the Employment Appeal Tribunal (“EAT”) held that the ET had properly assessed the law and the evidence. Accordingly, it dismissed the appeal.

12. Both the ET and the EAT also dismissed the applicant’s arguments that section 3 of the Human Rights Act 1998 (the “HRA”) allowed them to interpret the relevant legislation to include “workers”.

13. On 18 March 2015 the Court of Appeal dismissed the applicant’s appeal finding that neither the ET, nor the EAT had erred in their judgments. The applicant also argued before the Court of Appeal that his rights under Articles 8 and 11 of the Human Rights Act 1998 (the “HRA”) had been infringed and that the 1992 Act and the ERA should be read in a way which would protect those rights. The Court of Appeal dismissed that argument finding that the acts complained of occurred before the HRA came into force. Therefore, section 3 of the HRA did not permit the court to extend the definition of “employee”, as it could not be used to construe legislation retrospectively so as to give it a meaning which is Convention compliant with respect to matters arising before it came into force.

14. The Supreme Court refused permission to appeal on 28 July 2015.

4. Proceedings before the High Court

15. On 19 March 2012 as a member of a class action, the applicant initiated proceedings against a group of construction companies (the “Macfarlanes Defendants”) in the High Court for breach of the HRA, the Data Protection Act 1998 (“DPA”) and the tort of conspiracy. Mr Smith’s claim relied in part on the same detriments which were the subject of the Employment Tribunal proceedings.

16. Those proceedings settled on 28 April 2016. The defendant companies offered the claimants financial compensation and the applicant accepted a payment of fifty thousand pounds in settlement of his claim. The settlement proceedings also included an agreed joint statement made in open court which set out the history and factual details of the “blacklisting” procedures managed by the Consulting Association; described the processes used by the defendant companies and the CA, and detailed how workers were affected by this practice. The statement included the following admissions (The Construction Industry Vetting Information Group Litigation (various claimants v. Sir Robert McAlpine Limited and other defendants and Balfour Beatty Engineering Services Limited and other third parties ) High Court of Justice, QBD, Order of 25 May 2016, §§ 27-28):

“The Macfarlanes Defendants admitted generally that the communication of information included in record cards in the Services Group Database bore the defamatory message that the worker concerned might pose a risk of unjustified disruption on any site on which he was employed at the time when the entry was made and for a reasonable time thereafter apart from any additional specific allegation(s) recorded. The company providing the information accepted responsibility as the publisher. It was also accepted that aspects of the information held in the Services Group Database were confidential and should not have been used and that the information sometimes included private and personal details. Like admissions were made in relation to the Consulting Association and, in addition, admissions were made regarding data protection. It was accepted that these activities had consequences for certain workers in terms of lost work opportunities or refusals of work and that they had an impact on some workers’ personal lives.

Together with their admissions, the Macfarlanes Defendants offered their unreserved apologies for their involvement in the secret systems, for the adverse employment consequences caused to workers and for the distress and anxiety caused to such workers and their families. The Claimants accept those apologies as sincere. The Macfarlanes Defendants also made monetary offers from December 2015 to March 2016, which the Claimants have accepted as reasonable and proportionate compensation for the harm suffered. The parties now hope that this matter can be treated as a closed chapter.”

B. Relevant domestic law and practice

1. Legislation prohibiting “blacklisting”

17. Protection against blacklisting for employees was first introduced under section 1 of the Employment Act 1990. This provision was consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). Under section 146 of the 1992 Act it is unlawful to refuse an employee employment for reasons related to the fact that he or she is a member of a trade union.

18. Section 146 was amended by the Employment Relations Act 2004, widening the protection it provided by substituting “worker” for “employee” in relation to acts, or failures to act, on or after 1 October 2004. This was in part to give effect to Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, ECHR 2002-V (see the Final Resolution adopted by the Committee of Ministers at its 1120^th Human Rights Meeting of 14 September 2011 (CM/ResDH(2011)183)).

19. Section 44 of the ERA makes it unlawful to blacklist health and safety representatives. Section 44 was not changed in 2004 and only applies to employees. There is an overlap between Section 146 and Section 44 as many health and safety representatives will be trade unionists and in performing health and safety activities they are at the same time carrying out an important aspect of trade union activities. But there is not a complete overlap because not all safety representatives belong to a union.

20. Following the ICO investigation into the CA in 2009, the Employment Relations Act 1999 (Blacklisting) Regulations 2010 were brought into force on 2 March 2010 (the “Blacklisting Regulations”). The stated aims of the regulations are to dissuade persons from compiling, disseminating and using blacklists and, where such lists exist, to ensure that those trade unionists and others listed on them are fully protected. Among other things the regulations:

(a) define a prohibited list (i.e. a blacklist) and prohibit the compilation, dissemination and use of prohibited lists;

(b) make it unlawful for organisations to refuse employment, to dismiss an employee or otherwise cause detriment to a worker for a reason related to a prohibited list;

(d) provide for the employment tribunal to hear complaints about alleged breaches of the regulations; and as an alternative, provide for the courts to hear complaints from any persons that they have suffered loss or potential loss because of a breach of the regulations.

2. The Employment Tribunal

21. Pursuant to subsection (2) of the 1992 Act 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.

3. The Employment Tribunal and the Human Rights Act 1998

23. Pursuant to section 7 of the Human Rights Act, a person can bring free-standing 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.

24. 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). However, section 3 cannot be used retrospectively so as to give legislation a meaning which is Convention compliant with respect to matters arising before the Act came into force (Wilson v. First County Trust Limited (No. 2) [2003] UKHL 40).

4. The Data Protection Act 1988 and the Information Commissioner’s Office

25. The Data Protection Act was adopted on 16 July 1998 to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995. Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1).

26. The Information Commissioner, created pursuant to the Act (as amended), maintains a register of data controllers (section 19) and has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notices”) in this respect (section 40). Subject to certain conditions, the Act prohibits the processing of personal data “unless an entry in respect of the data controller is included in the register” (section 17) and any contravention of this prohibition amounts to a criminal offence (section 21). Section 13 also affords a right to claim damages in the domestic courts in respect of contraventions of the Act.

27. After raiding the CA in 2009, the Information Commissioner prosecuted its Chief Officer for failing to register as a data controller under the Data Protection Act 1998, he pleaded guilty and was fined. None of the companies who were members of the CA were prosecuted.

5. Parliamentary inquiry into “Blacklisting in Employment”

28. The House of Commons Scottish Affairs Committee launched an inquiry into Blacklisting in Employment on 27 June 2012. The inquiry took evidence from a number of witnesses including the applicant, the Chief Officer of the CA, representatives of trade unions, construction companies and the government. It issued four reports setting out its analysis, conclusions and recommendations, publishing its final report on 27 March 2015.

29. The inquiry dedicated its 2013 interim report to the activities of the CA, analysing in detail its origins, functioning, the raid by the ICO and the consequences. The inquiry stated in the conclusions of that report that:

“It is very clear to us that the service which the Consulting Association offered was a blacklisting one: that is, subscriber companies put information into and took information out of a database, and they used the information on that database to make decisions about whether or not to employ certain individuals. We concede that the legislative framework meant this was not initially illegal, and it was a service which the Economic League [the CA’s predecessor organisation] had performed for many years - but by the end of the CA’s life it certainly was illegal and all those involved should have known that. We consider it unethical and to be condemned.”

30. The inquiry also examined the legislative framework, noting that following the ICO raid on the CA, the Blacklisting Regulations were brought into force. In their response of 24 May 2014 to the inquiry the Government confirmed that they did not intend to introduce any new criminal sanctions but that they were committed to keeping the Blacklisting Regulations under review, should any new evidence of the practice be found.

COMPLAINTS

31. The applicant complained under Article 8 of the Convention that the collection and use of his confidential data by way of a “blacklist” was not in accordance with domestic law and could not be justified, nor was it necessary in a democratic society.

32. He also complained under Article 11 of the Convention that the law did not protect him as an agency worker, from inclusion on that “blacklist” due to his trade union activities, nor did it provide any remedy against that violation.

33. Finally, under Article 14 of the Convention, he complained that the law failed to protect him from discriminatory treatment permitting his inclusion on the “blacklist” because of his trade union membership and status as an agency worker, where others who did not exercise trade union rights were not blacklisted.

THE LAW

A. As regards the retention of personal data

34. Article 34 of the Convention reads:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

1. General principles

35. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him/her of his/her status as a “victim” of a violation of a Convention right unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). The issue of an applicant’s victim status is linked to the question of the existence of an effective domestic remedy in that the applicant’s ability to claim to be a victim will depend on the adequacy and sufficiency of redress the domestic remedy will have afforded him or her for the breach of the Convention right (compare Scordino v. Italy (no. 1) [GC], no. 36813/97, § 182, ECHR 2006-V).

2. The Court’s assessment

36. At the outset, the Court considers that in light of the criminal proceedings pursued against the Chief Officer of the CA by the Information Commissioner for failing to register as a data controller under the DPA (see paragraph 27 above) and the admissions made by the defendant companies in the High Court proceedings, it is clear that the retention of personal data by the CA interfered with the applicant’s Article 8 rights.

37. The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 98, ECHR 2012). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). The choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring “respect for private life”, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003-III).

38. In this case, the State responded to that positive obligation in part by making the unlawful retention of such data a criminal offence. Indeed, once information about the CA’s database was brought to light in 2009, criminal proceedings were successfully pursued (see paragraph 27 above).

39. The State also legislated to allow a civil remedy, and, in exercising his rights under the DPA, the applicant was able to pursue in the High Court the private companies who were behind the creation of the database. In the context of those proceedings, the companies admitted that the data were confidential and should not have been used. They also paid compensation to the applicant and others for their unlawful retention and use (see paragraph 15 above).

40. In light of the above, and taking into account the fact that it was the actions of private companies rather than the national authorities that are concerned, the Court concludes that the legal framework provided a combination of domestic remedies which proved to be effective in the applicant’s case, resulting in an acknowledgement of the violation of the applicant’s rights, and giving appropriate redress. In respect of the latter point, the Court notes that in the settlement proceedings the applicant accepted the compensation offered as reasonable and appropriate. He also abandoned his claim for just satisfaction before this Court.

41. Accordingly, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

B. As regards the applicant’s “blacklisting” due to his trade union membership

42. Article 35 § 3 (b) of the Convention reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as de-fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

1. General principles

43. As pointed out in previous case-law (see Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016 and C.P. v. the United Kingdom, (dec.) no. 300/11, § 41, 6 September 2016), the purpose of the new admissibility rule in Article 35 § 3 (b) is to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explanatory Report to Protocol No. 14, CETS No. 194, §§ 39 and 77-79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (ibid., § 77).

44. The Court has considered the rule to consist of three criteria. First, has the applicant suffered a “significant disadvantage”? Second, does respect for human rights compel the Court to examine the case? Third, has the case been duly considered by a domestic tribunal?

45. The first question of whether the applicant has suffered any “significant disadvantage” represents the main element. Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, C.P., cited above, § 42).

46. The second element contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see C.P., cited above, § 49). In particular, respect for human rights does not require the Court to continue the examination of an application when, for example, the relevant law has changed (see Léger v. France (striking out) [GC], no. 19324/02, § 51, 30 March 2009).

47. Finally, the third criterion under Article 35 § 3 (b) does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal”. The purpose of this criterion is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words to avoid a denial of justice (see C.P., cited above, § 51).

2. The Court’s assessment

48. The Court notes that domestic law did not protect the applicant’s rights as an agency worker and trade union member until the 1992 Act was amended with effect from 1 October 2004, to make it unlawful to refuse a “worker” (not limited to an “employee”) employment for reasons related to the fact that he or she is a member of a trade union. That change came too late to benefit the applicant. However, the Court considers that the applicant has not suffered any significant disadvantage for the reasons set out below.

(a) Has the applicant suffered a “significant disadvantage”?

49. In considering whether the applicant has suffered a “significant disadvantage” the Court notes that he received financial compensation in the settlement proceedings before the High Court and that the only consequence for the applicant of the lacuna in protection under the 1992 law was that the domestic courts could not examine in substance his arguments under Article 11. However, despite the fact that they were not able to rule on the substance of this claim, the domestic courts did acknowledge what had happened. In particular the Employment Tribunal remarked “We have reached our conclusions with considerable reluctance. It seems to us that [the applicant] has suffered a genuine injustice and we greatly regret that the law provides him with no remedy. We hope that he can take some comfort from the fact that the wrongdoing of which he complains has been exposed and punished and legislation passed designed to protect others from the misfortunes which he has experienced”.

50. The Employment Appeal Tribunal too indicated that “We join with the Employment Tribunal in expressing concern as they did in paragraph 71 of their judgment that the Claimant appears to have suffered an injustice from blacklisting (...)”.

51. Therefore, in light of the fact that the applicant has not suffered any financial consequence from the fact that he could not bring a substantive Article 11 claim, and that the domestic courts have recognised the genuine injustice he suffered as a blacklisted trade union member and agency worker this Court does not consider that he has suffered a “significant disadvantage”.

(b) Does respect for human rights compel the Court to examine the case?

52. As regards the question of whether respect for human rights compels it to examine the case, the Court observes that beyond the statements of the domestic courts in this case recognising the injustice of the applicant’s blacklisting, the activities of the CA were also the subject of a public and detailed inquiry by the House of Commons Scottish Affairs Select Committee. The applicant himself gave evidence to the inquiry, as did representatives of the companies involved, the Government and other affected parties. That inquiry devoted one of its four reports to detailing the CA’s actions, their impact and the follow-up given (see paragraphs 28-30 above).

53. The Court also notes that in addition to the 2004 change in the law, following the 2009 raid and prosecution by the Information Commissioner, the Government brought into force the Employment Relations Act 1999 (Blacklists) Regulations 2010 (see paragraphs 17-20 above). The stated aim of those regulations was to ensure that blacklisting of the type at issue in this case, is clearly unlawful.

54. Therefore, the problem which affected the applicant has been the object of detailed scrutiny at the domestic level by the Parliament and other domestic bodies, by reference to the very practices of the CA at the heart of his complaint. Moreover, the Parliamentary Inquiry established a clear consensus that what happened was “unethical and to be condemned”. Appropriate follow up action was also taken at the domestic level with the changes to the legislative framework, making the issue before the Court of historical interest only (see paragraph 46 above). Therefore, the Court finds that respect for human rights does not require it to continue the examination of this complaint.

55. As regards this third and final element, it is to be noted that even if the domestic courts could not examine in substance the applicant’s claim, his case was certainly “duly considered” by three levels of jurisdiction, the ET, the EAT and the Court of Appeal. The High Court also examined his case prior to the parties’ agreement to settle that litigation.

56. In light of the above the Court concludes that the application satisfies the three criteria, therefore, this part of the application must be declared inadmissible pursuant to Article 35 § 3 (b) of the Convention.

C. As regards the remaining complaints

57. The Court reiterates that, in accordance with its established case-law, Article 14 has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols (see, among many other authorities, Pavel Ivanov v. Russia, 35222/04 (Dec.) 20/02/2007 and Gaygusuz v. Austria, no. 17371/90, § 36, ECHR 1996-IV). In the present case the applicant’s complaints under Articles 8 and 11 of the Convention were found, respectively, incompatible with the Convention ratione personae and inadmissible (see paragraphs 41 and 56 above). Accordingly, there is no room for application of Article 14.

58. It follows that the complaint under Article 14 must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2017.

Renata Degener Kristina Pardalos
Deputy Registrar President

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