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Judges at the European Court of Human Rights today unanimously made a ruling in favour of trade union members Dave Wilson and Terrence Palmer, which will stop employers from penalising workers who want to be represented by a union at work

date: 2nd July 2002

embargo: immediate release

Attention: industrial correspondents

3 pages

Seven Judges at the European Court of Human Rights, including the UK’s Master of the Rolls, today unanimously made a ruling in favour of trade union members Dave Wilson and Terrence Palmer, which will stop employers from penalising workers who want to be represented by a union at work.

The ruling states 'It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.'

Although there is legislation in the UK making it illegal to discriminate against employees on the basis of their membership, or non-membership of a trade union, this protection does not extend to making use of that union membership, that is, being represented by their union.

The cases arise from a journalist and dockers who were denied pay rises for refusing to sign 'personal' contracts accepting that they could not be represented by a union.

The NUJ and the RMT, backed by the TUC and the human rights organisation, Liberty, appealed to the Strasbourg Court under Article 11 of the European Convention on Human Rights, which says: 'Everyone has the right to join trade unions for the protection of his interests.'

The Court Judgement says 'It is the essence of the right… that employees should be free to instruct or permit the union to make representations to their employer. If workers are prevented from so doing the freedom to belong to a trade union becomes illusory.'

John Monks, TUC General Secretary, said:

'I am delighted that we have won such an important victory in the ECHR today. My congratulations go to the union members concerned and to the two unions which backed them. The TUC has given its full support to the unions from the outset and is proud to be associated with the case. It is outrageous that UK law continued to allow workers to be penalised for trying to make use of their union membership through representation. We now call on the Government to change the law so that workers are able to have their voice heard through their union without suffering worse working conditions.'

Dave Wilson said:

'At moments over the past 12 years, I have thought, why me? But today I feel privileged to have been able to help to protect basic freedoms and strengthen workplace rights, especially for people who feel vulnerable and without a voice at work.'

Notes to Editors:

The workers involved are journalist David Wilson and Terrence Palmer and Arthur Wyeth from Associated British Ports in Southampton, along with 8 workers from ABP at Cardiff.

In this case, in 1990, Wilson, a sub-editor at the Daily Mail (NUJ), and in 1991 Terrence Palmer, a dockworker at ABP in Southampton (RMT) both had wage increases withheld because they refused to sign personal contracts de-recognising their unions. Workers who did agree to this were given the increase. Membership or otherwise of the union was not an issue.

Nonetheless, both unions, with the support of the TUC, applied to the Industrial Tribunal on the basis that omission from a pay rise amounted to discrimination against them on trade union grounds. The unions initially won the cases at the IT. The employers appealed and won their appeal at the Employment Appeal Tribunal. The unions jointly appealed and won at the Court of Appeal (1993). At this point, the Tory Government introduced the 'Ullswater' amendment to the Trade Union and Employment Relations Reform Act 1993. This amendment said that it was not illegal for an employer to provide inferior terms for trade unionists if this was done to 'further a change in his relationship with all or any class of his employees'.

In the meantime, the employers appealed to the House of Lords and won (1995). This meant that discrimination by 'omission' was not discrimination and in any case the new laws said that employers could do this in order to 'further a change' as described above.

The Employment Relations Act 1999 reversed the House of Lords judgement in that it specified that 'omission' was discrimination, but unfortunately the Act did not reverse the 'Ullswater' amendment and a last minute Tory amendment reinforced the 'Ullswater' amendment by legitimising personal contracts as a legal means of bribing workers to opt out of collective agreements.

Complaints to the ILO and the Council of Europe

The TUC has made formal complaints to both the International Labour Organisation (1997) and the Council of Europe (1997 and 1998) both of which have criticised the UK Government for allowing this form of discrimination against trade union members to continue.

Application to the European Court of Human Rights (ECHR)

Following the House of Lords judgement, the two unions decided to take their case to the European Court of Human Rights. Their application was backed by the TUC and by Liberty. The cases were heard in January 2002 and judgement is due at 1.30pm (UK time) on 2 July.

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