CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 20435/92                       by R.G.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 2 December 1992, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  E. BUSUTTIL            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 March 1992 by R.G. against the United Kingdom and registered on 4 August 1992 under file No. 20435/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is a United Kingdom citizen born in 1948.   He is an industrial worker at present unemployed.   Before the Commission he is represented by Mr. P. Diamond, a non-practising barrister, who lives in London.         On 2 October 1991 the Industrial Tribunal accepted the applicant's allegation that he had been unfairly dismissed by his employer.    The Industrial Tribunal accepted that that, although the applicant's contract referred to working overtime "when the workload makes this necessary", the gradual build-up of overtime to a position where the applicant was required to work for 7 days a week for a period of between 9 and 12 weeks a year was not lawful.   In the alternative, the Industrial Tribunal considered that the order to work such hours was not reasonable.   In the further alternative, the Industrial Tribunal found that it was not reasonable to dismiss the applicant for refusing to obey instructions to work such hours.   The applicant subsequently received a sum of £12,139 in an out-of-court settlement.   This sum exceeded any award which the Industrial Tribunal could have made.   The applicant had not requested re-instatement.         The applicant has since found work with the University of Cambridge.   COMPLAINTS         The applicant alleges violation of Articles 1, 3, 4, 8, 9 and 13 of the Convention.         The applicant considers that his working hours of up to 84 hours per week on site and the consequent destruction of his social and family life and violation of his personality in a systematic   fashion by his employers amount to a standard of conduct unacceptable among the civilised nations of Europe.   He considers that such treatment was inhuman and degrading, and that the United Kingdom has either encouraged or adopted a position of "official tolerance".         In connection with Article 4 of the Convention, the applicant considers that his employment requirements were so unreasonable that Article 4 para. 2 of the Convention was breached.         Under Article 8 of the Convention the applicant considers that his right to respect for private and family life and his home has been violated because the United Kingdom has not enacted the necessary statutory protection or ensured that such rights are respected by alternative methods.   He refers to the importance of a rest day, and, in particular, to the importance of this rest day being Sunday wherever possible, as it was the only day on which the applicant could be with his family.   He considers that Article 8 imposes a positive obligation on the United Kingdom Government "to ensure that, in general, citizens can exercise their custom and rights in ensuring that Sunday remains a day when social relations have primacy over commercial ones."   The applicant contends that he remains a victim of a violation of these rights as he is not protected at all by the Employment Protection (Consolidation) Act 1978 because of a two-year qualification period.             Under Article 9 of the Convention, the applicant, a practising Christian, underlines that the requirements to work every Sunday and the continuing threat of regular Sunday working due to United Kingdom Government policies have resulted in a violation and the threat of a continuing violation of Article 9 of the Convention.   He considers that the United Kingdom policy of introducing Sunday working and Sunday trading can only result in the personal violation in the applicant's case and mass violation of both Articles 8 and 9 of the Convention.         Under Article 13 of the Convention, the applicant considers that the present state of United Kingdom law required him to bring proceedings against his employer, and that this was an onerous task, particularly in the absence of legal aid.   He considers that it is inappropriate to argue that his rights have been adequately protected by the Industrial Tribunal's decision, as it is for the United Kingdom Government to take measures adequately to secure his rights under the Convention.   He considers that his own individual rights and those of others need protection collectively by statutory regulations and effective enforcement by the State.   Moreover, the qualifying period for protection under the Employment Protection (Consolidation) Act 1978 strike at the root of statutory protection.         The applicant considers that the "effective remedy" is for the United Kingdom Government to introduce legislation ensuring a weekly rest day which should in principle be Sunday, and to introduce legislation establishing maximum working hours.     THE LAW   1.     The applicant alleges that the Convention has been violated in various respects because of a requirement, found unlawful by the Industrial Tribunal, that he work extremely long hours, including Sundays, for a period of some 9 to 12 weeks per year.         The Commission notes that the applicant was vindicated before the Industrial Tribunal in that it found that he should not have been required to work such long hours, and that his dismissal for refusing so to work was not reasonable.   The applicant, who had not requested re-instatement (which could have given rise to a larger award if the employer had refused to accept the applicant), accepted £12,139 by way of an out-of-court settlement.         The Commission recalls that States are not required to incorporate the Convention into domestic law, but that the substance of the rights and freedoms in the Convention must be secured under the domestic legal order (cf. Eur. Court H.R., James and Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 84).   The Commission finds that the applicant was able to put to the Industrial Tribunal the substance of his claims concerning the unreasonableness of his having to work on Sundays, and that the Industrial Tribunal accepted the substance of those claims.   Although the sum which the applicant received in his out-of-court settlement exceeded that which the Industrial Tribunal could have awarded in respect solely of the unfair dismissal, it did not exceed the sum which the applicant could have received if he had requested reinstatement, if the employer had refused this, and if a "special award" had been made in lieu of reinstatement.           Taking into account the conclusion of the Industrial Tribunal, together with the sum the applicant received by way of settlement, the Commission finds that he can no longer claim to be a victim of a violation of the Convention by the United Kingdom in respect of the hours he was required to work.         Accordingly, this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains of the general state of the law which, he contends, does not provide for any clear guidelines as to working hours and rest days in the United Kingdom.         Although in certain circumstances the Convention organs have held that a person may be directly affected by laws of which he complains without there having been an individual measure of implementation (cf. Eur. Court H.R., Norris judgment of 26 October 1988. Series A No. 142),the Commission cannot find in the present case any indication that the applicant is so affected by the existence, or absence, of legislation.   In particular he has not submitted any information which could lead the Commission to conclude that he is again at risk of having to work long unsociable hours.   It therefore concludes that he cannot claim to be a victim of a violation of the Convention.         Accordingly, this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE       Secretary to the First Chamber         President of the First Chamber             (M. de SALVIA)                          (J.A. FROWEIN)