Building worker power

By Rachel Halliday, Thompsons Solicitors

Despite a UK legislative agenda which prioritises hostility towards trade unions the movement has managed to make advances in collective rights.

Although there were far more pressing issues worthy of legislative action the Conservatives introduced the Trade Union Bill within nine weeks of their 2015 general election victory which became the Trade Union Act 2016.

The 2016 act brought greater restrictions on organising industrial action such as the requirement for a 50 per cent turn out, and 40 per cent support requirement in “important public services” as well as additional information to be included on the ballot paper. Further burdens included a requirement for members to opt into political funds and limitations on facility time and check-off in the public sector.

The act also brought new powers for the Certification Officer – to charge a levy, to impose fines, to investigate possible breaches without receiving a complaint and other investigatory powers.

Although the Omicron Covid variant was at the time sweeping though the country the Conservatives found time in December 2021 to publish the draft statutory instruments implementing these new powers (effective from April 2022).  

By contrast there is no sign of the much-vaunted Employment Bill, which we were told would strengthen protections against pregnancy discrimination, ensure restaurants hand over service charges and tips to workers and create a single enforcement body. The bill was promised in December 2019 after Boris Johnson’s election victory. The legislation has yet to be published.

European Convention on Human Rights

Until 2002, and despite criticism from international supervisory bodies including the International Labour Organization’s (ILO) Committee on Freedom of Association, UK law allowed employers to use financial incentives to induce employees to give up union rights.

As Professor Keith Ewing explains above, it took the European Court of Human Rights (ECtHR) in the Wilson and Palmer case to declare that UK law infringed the right to freedom of association protected by article 11 of the convention.

And in judgments just this year first the Supreme Court has in Kostal, as Michael Ford QC and Stuart Brittenden set out in their essay, interpreted that judgment so as to outlaw incentives to give up collective bargaining rights even for a single pay round.

Then, in the recent Ineos case, the Employment Appeal Tribunal (EAT) agreed with Unite members that imposing a pay increase outside the collective bargaining process amounted to an unlawful inducement to give up collective bargaining rights.

Likewise, until 2007, UK law made it unlawful for unions to expel members on grounds of membership of a political party such as the BNP. However, in ASLEF v United Kingdom the Strasbourg Court reversed that.

Human Rights Act

The Human Rights Act brought new opportunities to seek advances that weren’t going to be forthcoming from a resistant UK government with the requirement under section 3, so far as it is possible to do so, for legislation to be interpreted in a way which is compatible with Convention rights, and the availability of declarations of incompatibility under section 6.

It has for decades been unsatisfactory – and out of kilter with international standards - that TULRCA does not provide protection against action short of dismissal for taking part in industrial action. In 2021 in Mercer v Alternative Futures, the Employment Appeal Tribunal was prepared to use its powers under section 3 Human Rights Act to ‘read down’ the relevant provisions of TULRCA so as to interpret them compatibly with article 11, as interpreted by the European Court of Human Rights, and provide for protection against action short of dismissal for a UNISON member taking part in industrial action. Although the EAT’s judgment has now been overturned by the Court of Appeal in doing so it recognised that the failure to provide protection may mean that the UK continues to infringe article 11.

The overall judicial picture of using article 11 of the European Convention to advance collective rights is mixed. So that whilst in RMT v United Kingdom in 2014, the Strasbourg Court declined to agree with our contention that the requirement for a pre-ballot notice and the prohibition on secondary action infringed rights under article11 its force was demonstrated very recently in another case - Straume v Latvia - in which the European Court found that Latvia had infringed article 11 by not providing for protections against detriments imposed on the leader of a Latvian union for raising concerns about working conditions.   

And even in the domestic UK courts the judicial attitude to industrial action challenges has, since RMT v Serco and ASLEF v London and Birmingham Railway in 2011 been profound. The recognition by the Court of Appeal in that case that the right to strike is an element of the right to freedom of association under article 11, which is in turn given effect by the Human Rights Act was a major breakthrough and has encouraged a ‘likely and workable’ construction of the industrial action legislation rather than one strictly against unions seeking the benefit of an immunity.

The Bill of Right

In December 2021, the government published a consultation on replacing the Human Rights Act with a “modern Bill of Rights".

Proposals within that included making it clear that UK courts are not required to follow decisions of the European Court of Human Rights, that the interpretation of a right in the Bill of Rights may not be the same as that of a corresponding convention right, and requiring courts to give weight to parliament’s intentions when considering if interference with a right is justified.

Conclusion

So long as there is a Conservative government in power in the UK, the legislative agenda will continue to be antagonistically and ideologically hostile to trade unions, and that includes rights derived from convention rights.

However, as they have always done trade unions will continue to find innovative ways to overcome that entrenched opposition and advance collective rights through the use of convention rights and the Human Rights Act.

*Thompsons was instructed on behalf of trade union clients in all but one of the cases mentioned in this article (Mercer v Alternative Futures.)