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Building worker power

Essays on collective rights 20 years after the Wilson and Palmer case established the right to be represented by a trade union
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Research and reports
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The end of collective rights as human rights?

By Shantha David, head of legal services, UNISON

The objective of the Human Rights Act 1998 was to “bring rights home” and allow a remedy in domestic law for breaches of the European Convention on Human Rights (convention rights). Until then, influential cases such as Wilson, Palmer and Doolan v UK, celebrated in this collection, had to go all the way to the European Court of Human Rights (ECtHR) to seek a remedy.

I describe below one of UNISON’s many successful cases concerning collective rights where we fought to enshrine in domestic law, the principle that the right to collective bargaining is a fundamental human right.

However, unions need to be aware that the new Bill of Rights tabled by the government threatens to undermine and indeed reverse these achievements.  It appears to weaken the obligation on governments to make legislative changes to bring the law into line with convention rights and could leave unions with no choice but to challenge breaches in the ECtHR.

Collective consultation rights

Recognised trade unions have a statutory right to receive information and to collectively consult with employers in two situations: when redundancies are proposed and where there is a relevant transfer of an undertaking.

While the provision of information is similar in both situations, the consultation requirements differ.

Where an employer proposes to make redundancies of 20 or more employees within a period of 90 days or less it must inform and consult on its proposal with representatives of the affected employees, including unions under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which implements the European Collective Redundancies Directive.

The purpose of consultation as envisaged in European case law and which is reflected in the aims of TULRCA 1992, s.188, is:

…not only to avoid collective redundancies or to reduce the number of workers affected, but also, inter alia, to mitigate the consequences of such redundancies by recourse to accompanying social measures aimed, in particular, at aid for redeploying or retraining workers made redundant.

Unlike with redundancies where there is a requirement for meaningful consultation, the duty to consult where there is a transfer of an undertaking is narrower.  This is because the requirement to consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) only arises in respect of an employer who envisages taking measures in respect of each of their affected employees. The purpose of such consultations shall be “with a view to seeking agreement to the intended measures”.

Information and consultation claims

UNISON has over the years run a large number of information and consultation claims, and has, through time, sought to expand the scope of redundancy consultation in domestic law.

In Wandsworth LBC v Vining, Francis and UNISON, we argued that this requirement to consult was collective in nature and so must by virtue of article 11 of the European Convention on Human Rights (ECHR), apply to the domestic interpretation of TULRCA, s.188.

This argument relied on the collective requirement that the "consultation" required under TULRCA, s.188 (2) has to be undertaken "with a view to reaching agreement".

It was buoyed by the 2008 judgment of the Grand Chamber of the European Court of Human Rights in Demir and Baykara v Turkey, that, in principle, the right to collective bargaining is a fundamental human right.

We argued that it followed that the statutory exclusion of parks police from collective consultation under TULRCA s. 280 interfered with the union’s and its members’ rights to collective bargaining, and so also breached article 11 ECHR.

The Court of Appeal agreed with UNISON, securing into domestic law this principle that the right to collective bargaining is a fundamental human right.

In his judgment, LJ Underhill held that, in light of Demir, the rights of the parks police and UNISON (in representing those individuals) “falls squarely with the ‘essential elements’ protected by article 11” and so the UK had a “positive obligation to secure the effective enjoyment of those rights”.

The Human Rights Act 1998 (HRA) s. 3, requires that so far as it is possible to do, legislation must be read and given effect in a way which is compatible with the convention rights. Therefore, the Court of Appeal held that the statutory exclusion had to be read as not extending to parks police in order for UNISON’s claim to succeed and to comply with the ECHR.

The Bill of Rights

The Bill of Rights that was introduced to Parliament on 22 June 2022 does not contain an equivalent interpretative provision to HRA s. 3. 

Although the UK is bound to remove incompatibilities with the ECHR to comply with article 1 ECHR, the wording in Clause 26 of the bill states that the making of amending regulations or the requirement of Parliament to legislate to remedy the domestic legislation to ensure compliance, can be let to the discretion of the relevant minister if they think “there are compelling reasons” to remove the incompatibility.

Unions should be concerned by this fundamental change to the law. The Vining judgment has shown that even when judges pointed to a lacuna in the law and expressed their inability to remedy legislative deficiencies, and suggested parliament do this, still no correcting legislation by way of a properly consulted upon and sufficiently scrutinised act of parliament was made. In the absence of an interpretative obligation, there is even less incentive on the part of government to remedy deficiencies in the law to ensure ECHR compliance.  

It is also unlikely that decisions such as in Vining, will survive once the bill is enacted. In fact, clause 40 of the bill states that subject to any transitional or saving provisions, such judgments can only survive if the effects of existing judgments are preserved. The secretary of state may “amend or modify any primary or subordinate legislation so as to preserve or restore (to any extent) the effect of a relevant judgment of the court”; which includes any judgment “made in reliance on section 3 of the HRA 1998”.

As UNISON suggested in its response to the Independent Human Rights Act Review,

... the unintended consequences of the Bill of Rights could include more applications to European Court of Human Rights; and the more there are, the more the UK government loses credibility internationally.

This has the potential to become a wider political problem for the government when wishing to assert that other countries do not respect universal human rights. A regime that makes it unduly difficult for individuals to access justice through the courts may also fall foul of the common law right to access to justice as the UK Supreme Court made clear in R (UNISON) v Lord Chancellor [2017].

Worryingly, the narrower codification of judicial review law in the Judicial Review and Courts Act 2022 will make it even harder to meaningfully challenge breaches of access to justice.  Finally, it may also mean that there is cause for complaint that the UK was failing to comply with article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) to which the UK is a signatory, which requires parties to the treaty to ensure that any person whose rights and freedoms have been breached have an effective remedy.

Redress in the UK courts is essential in a fully functioning democracy, and governments of every hue should not be afraid of their decisions being challenged within a judicial system that has the jurisdiction to ensure compliance with the principles contained within the HRA and convention rights.

Collective rights remain under attack, and the work of unions remains vitally important.

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