Building worker power

By Professor Keith Ewing

Background

British trade unionists have long been accustomed to regard judges as a threat to their freedoms.

Indeed, as Ralph Miliband wrote over 50 years ago, “the history of trade unionism” is also “the history of an unending struggle against the courts’ attempts to curb and erode the unions’ ability to defend their members’ interests”.

For that reason alone, Wilson and Palmer v United Kingdom appeared to confound history, with the European Court of Human Rights (ECtHR) embracing trade union rights for what was probably the first time by that court.

In one of the most important labour law cases of its generation, it was held that by permitting employers to discriminate against trade unionists, British law violated the European Convention on Human Rights (ECHR).

By article 11, the latter guarantees “the right to form and join trade unions for the protection of [one’s] interests”. The state has a “positive obligation” to ensure the enjoyment of these rights, an obligation with which the United Kingdom had failed to comply.

British law

The Wilson and Palmer decision was a direct consequence of employer de-recognition: withdrawing from collective bargaining and offering workers financial inducements to enter into personal contracts. Those who refused to accept the inducements and insisted on remaining on the collective agreements were denied the substantial “doucers” and thus penalised as a result. 

Legal proceedings were brought in the British courts on the ground that the employers’ conduct was unlawful under what was then the Employment Protection (Consolidation) Act 1978, s 23.  But in Associated Newspapers plc v Wilson; Associated British Ports v Palmer (1995) these claims under domestic law were eventually dismissed by the House of Lords:

• The statutory protection from discrimination on the ground of trade union membership applied at the time to “action” short of dismissal, not “omissions”.   Workers from whom bonuses were withheld because of their refusal to give up collectively agreed terms and accept personal contracts were the victims of an “omission” rather than “action” by their employer.
•  The statutory protection from discrimination on the ground of trade union membership did not extend to protection for using the “essential services” or enjoying the benefits of the union. Such an interpretation would “at best” have placed “an unnecessary and imprecise gloss on the statutory language”, and “at worst” was “liable to distort the meaning of these provisions which protect [only] union membership as such”.

The first of these bullet points was addressed by the Labour government (elected in 1997) in the Employment Relations Act 1999, when the law was recast in its present form:  a worker now has “the right not to be subjected to a detriment as an individual by any act, or any deliberate failure to act, by [their] employer”.

But this left unresolved the other questions in the Wilson and Palmer case:   Labour’s reforms did not address the problem of discrimination for using the services of a union; and it remained unclear just how far the new law would protect workers and unions from financial pressure to give up bargaining rights.

ECtHR judgment

All eyes were now on Strasbourg proceedings, which were initiated in 1995, while the Conservatives were still in office.  It took seven years for the ECtHR to deliver a judgment, by which time Labour was now in government. 

The court held in effect that the Employment Relations Act 1999 did not go far enough to meet convention obligations.  According to the Strasbourg court, British law continued to be inadequate, first because protection from discrimination applied only on the ground of trade union membership or activities, but not also for the use of union services.

Secondly, British law was inadequate because it did not prohibit employers from making financial inducements to workers as a step towards de-recognition. The latter was said to violate the right of the workers induced, as well as - crucially - the union itself.

It was thus necessary for the Blair government to legislate again, this time to deal with the second bullet point above.   
This was done in the Employment Relations Act 2004, which introduced what is now the Trade Union and Labour Relations (Consolidation) Act 1992, ss 145A-145F.
 

But while welcome, it remains an open question whether this second round of legislation goes far enough to meet the requirements of the Strasbourg decision, as was pointed out at the time by Parliament’s human rights select committee.

Indeed, and perhaps as a result of a drafting oversight, it is even contestable whether the legislation would cover the facts of the Wilson case itself were they ever to be repeated.

The new right not to be subjected to an inducement applies where the union is recognised or ceases to be recognised. The NUJ had been derecognised. 

And although Mr Wilson might say that he had been discriminated against for using the services of the union, the legislation remarkably states expressly that benefiting from collective bargaining is not to be treated as a trade union service.  

Otherwise, the rights of the union were overlooked in the implementing legislation. The government legislated in the Employment Relations Act 2004 – by way of an amendment to the Trade Union and Labour Relations (Consolidation) Act 1992, Schedule A1 - to give unions a right to complain about unfair practices used by employers to resist recognition applications.

But for reasons unknown, it was unwilling to do the same where the employer had embarked on a process of de-recognition.   

Yet as the ECtHR made clear in Wilson and Palmer, the government’s failure identified in that case “amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants”. 

Importance of the ECtHR judgment

But while we might quibble about some aspects of the legislative response to the Strasbourg court’s decision, the great importance of the decision should not be diminished. Nor should its pre-eminence as a case study in the virtues of strategic litigation be under-estimated.

First, not only did the applicants secure a court ordered remedy from the government for the wrongs done to them by their employer, the decision also required a Labour government to change the law for a second time to reverse the House of Lords decision in 1995. That would not have happened without the Strasbourg judgment.

Secondly, nor should it be overlooked that in some respects the implementing legislation – now the Trade Union and Labour Relations (Consolidation) Act 1992, s 145A-145F - goes further than anticipated, as is inevitably the case: all legislation has unintended consequences; some good, some bad. 

The likely unintended but positive consequences of the legislation implementing Wilson and Palmer were revealed by Kostal UK Ltd v Dunkley.  In that case, the UK Supreme Court considered the implementing legislation for the first time, though in view of the opaque reasoning of the court, it would not be surprising if they were to revisit the matter in the near future.

As pointed out by Michael Ford QC and Stuart Brittenden below, the Supreme Court decision in Kostal UK Ltd v Dunkley is not by any means a cause for unrestrained celebration.  But as the court makes clear, the Trade Union and Labour Relations (Consolidation) Act 1992, ss 145A-145F apply not only in cases of de-recognition (as in Wilson and Palmer itself), but to a much wider range of anti-union practices by employers.

These include – as in Kostal UK Ltd – what some might construe as attempts to marginalise or undermine the authority of a recognised trade union during the collective bargaining process by going over its head to seek agreements with workers individually, at a time when collective bargaining procedures have not yet been exhausted.   

Admittedly the employer appears to be free to approach workers individually once the collective bargaining procedures have been completed and no agreement has been reached.  But such approaches are not risk free, the Supreme Court having created some uncertainty on which unions and workers ought to be able to capitalise. This uncertainty arises not only in terms of:

• what collective bargaining procedures require in any particular case, but also
• the employer’s bargaining behaviour while the procedures are being operated. 

Did the employer come into the process with an open mind and bargain in good faith throughout?

For probably the first time in British law, the behaviour of the employer during the bargaining process may thus now be the subject of regulation.  That would not have happened either without the Strasbourg judgment.

Thirdly, apart from securing a victory for the complainants and a change to the law, Wilson and Palmer is crucially important more broadly for the willingness of the ECtHR to engage with and embrace International Labour Organization (ILO) and European Social Charter standards in the development of the ECHR, article 11.

The relevance of that material in expanding the scope of the ECHR, article 11 was re-affirmed in the sensational Demir and Baycara v Turkey ECHR judgment six years later, thereby underlining the trade union movement’s essential role in keeping fresh the jurisprudence of these bodies if headway is to continue to be made in Strasbourg and elsewhere.

Conclusion

While we celebrate Wilson and Palmer, we should also recognise that none of it would have been possible without the remarkable courage of the litigants over a period of 13 years, as well as the perseverance and support of senior trade union officials, together with the skill and determination of the legal team.

Their legacy has been immense. Wilson and Palmer has been transformative and has provided the inspiration for trade unions throughout Europe to take convention rights seriously, with trade unionists in the Council of Europe generally enjoying spectacularly high levels of success in article 11 cases before the ECtHR.

It is true paradoxically that since Wilson and Palmer, the Strasbourg court in contrast has been much less responsive to British applications under article 11. But that may yet change if the Human Rights Act 1998 is repealed, and the British courts are no longer required under a British Bill of Rights to ensure that the United Kingdom is fully ECHR compliant.