Britain shamed by international law

Author(s): JOHN HENDY

Source: International Union Rights, Vol. 10, No. 1, Focus on the European Union (2003), pp.
28-29
Published by: International Centre for Trade Union Rights
Stable URL: https://www.jstor.org/stable/41937283
Accessed: 08-10-2019 23:23 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

International Centre for Trade Union Rights is collaborating with JSTOR to digitize,
preserve and extend access to International Union Rights

This content downloaded from 49.150.1.21 on Tue, 08 Oct 2019 23:23:00 UTC
All use subject to https://about.jstor.org/terms
 OPINION □ BRITISH LAW

Britain shamed by
international law
breached Art.6(4) which protects the rights to
field of union rights. The UK government collective bargaining and to take collective
bad year for LAST was fieldwasslammed
slammedyear
by a ofsuccession
union wasof rulings
by a rights.
by bad a succession year The for UK Britain of government rulings in the by action.

Britain in the field international bodies telling it (yet again) that the In November the Council of Europe's 'Euro-
UK's trade union laws breach international laws pean Committee of Social Rights' reported.7 It
of union rights ratified by the UK and binding on it. found8 yet again that the UK's trade union laws
were in breach of Art. 5, in particular: because
ILO criticism 'the requirement to give notice to an employer of
In June the International Labour Conference a ballot on industrial action is excessive'; because
adopted the report of its Committee of Experts1. the prohibition on unions paying a member's
Amongst other findings, the Committee2 repeat-fine, and the restrictions on the grounds on
ed its previous conclusions (expressed over thewhich a union may lawfully discipline its mem-
best part of 10 years3 and consistently ignored bybers both 'constitute an unjustified incursion into
the government) that the UK was in breach of the autonomy of trade unions'; and because the
Convention 98 (which it ratified in 1950). The restrictions on the grounds of refusal of admis-
reason was the lack of legal protection in the UK sion to and expulsion from membership 'consti-
against anti-union discrimination evident in the tute an excessive restriction on the right of a
Wilson and Palmer case. These were two cases trade union to determine its conditions for mem-
(one in the newspaper industry and one bership'.
in the In relation to Art. 6 the Committee
docks) where, in each case, the employer de- its earlier criticisms of the Wilson situa-
repeated
recognised a long established union andtion and a
paid the 'Ullswater amendment':
wage increase to those workers who signedThe newCommittee has repeatedly found the situa-
individualised contracts of employment and tion in the United Kingdom not to be in confor-
refused it to those who wished to remain repre- mity with the Charter because of the scope
sented by their union. This was held by the allowed to employers to undermine collective
English courts to be perfectly lawful under cur- bargaining in this manner. As section 17 of the
rent legislation. The legislation also contains a Employment Relation Act 1999 has not
provision, the 'Ullswater amendment'4, which resolved this problem, the Committee there-

I Britain Last of bad union year in the year was rights field for a instructs tribunals to find that there is no anti-
union discrimination where the discrimination
was, for example, in order to derecognise a of
Kingdom is not in conformity with Article 6(2)
the Charter.
union
fore concludes that the situation in the United

and substitute 'individualised' contracts ofIn relation to the right to take collective action
emp-
loyment. The ILO wearily repeated that it the Committee held that the bar on all secondary
'once
again requests government to take steps to action meant that 'The scope for workers to
review and amend [legislative anti-union discrimi- defend their interests through lawful collective
nation protection]'. action is thus excessively circumscribed in the
United Kingdom'.
Criticism from Europe The protection of individual workers taking
In July the European Court of Human Rights lawful industrial action was, the Committee
noted, lost after eight weeks. 'This arbitrary
(ECtHR) in a historic decision in the Wilson and
threshold does not afford adequate protection'
Palmer case5 held that the anti-union discrimina-
they
tion permitted in UK law was in breach of Art. 11 held. Moreover:
Article 6(4) of the Charter provides for the
of the European Convention on Human Rights
and Fundamental Freedoms 1950. This case was right of all workers to take collective action,
reviewed in IUR vol.9 no. 3. whether supported by a trade union or not.
Things did not stop there. In October 2002 the The limitation of protection against dismissal to
Council of Europe published its Survey of official action is therefore not in conformity
Member States' implementation of the European with the Charter. Furthermore, it is not lawful
JOHN HENDYQCis Vis ting Social Charter (sister to the European Conven- for a trade union to take industrial action in
Profes or in the Scho l of Law, tion)6. The survey noted breaches of 15 of the support of workers dismissed in such circum-
King's Col ege, London; Head stances, which is a serious restriction on the
Articles which the UK had ratified. In relation to
of Old Square Chambers; Chair trade union rights and in parallel with the ILOright to strike.
of the Institute of Employment and the European Court of Human Rights there The Committee referred to cases9 which showed
Rights; and a Vice-President of were long standing breaches of Art. 5 (which 'the very considerable efforts that are required of
pro-
the International Centre for
tects the right to organise) by reason of trade
the unions seeking to comply with the [ballot-
Trade Union Rights ing] laws'. They held that 'the complexity of the
employers' freedom to discriminate on anti-union
grounds, as above. The Survey also found in tan-
law. . . makes it relatively easy for the employer to
dem with Council of Europe and ILO criticism obtain an injunction'. The Committee ended:
over the years that laws on industrial action The Committee concludes that the United

INTERNATIONAL union rights Page 28 Volume 10 Issue 1 2003

This content downloaded from 49.150.1.21 on Tue, 08 Oct 2019 23:23:00 UTC
All use subject to https://about.jstor.org/terms
 Kingdom does not guarantee the right to take to enable employees who go on strike to haveFriction Dynamics
collective action within the meaning of Articlea remedy before a tribunal for unfair dismissal.
6(4) of the Charter: the notion of lawful indus- highlights the
Employees participating in a lawful strike could
trial action is restrictive, the procedural not ipso facto be regarded as having commit-
requirements are onerous, the consequences ted a breach of an employment contract... The
for unions where industrial action is found not Committee recommends that the right to strike
to be lawful are serious, and the workers have be established in legislation, and that strike
governments to
limited protection against dismissal when tak-action does not entail any more the loss of
ing industrial action. employment, and it expresses the view that theabide by the
current notion of freedom to strike, which sim-
international laws
Developments in the UK ply recognises the illegality of being submitted
Just a month later in December came the employ- which the UK has
to an involuntary servitude, is insufficient to
ment tribunal decision in the Friction Dynamicssatisfy the requirements of Article 8 of the
case.10 Covenant...
In that case 86 workers were dismissed for tak- If lawful industrial action were declared not to
ing strike action to resist adverse changes toamount to a breach of the contract of employ-
terms and conditions. The employer sought toment (as it does not in most of Europe), there
exploit S.238A Trade Union and Labour Relations would be no need for complex and ineffectual
(Consolidation) Act 1992 (added by the Employ- unfair dismissal laws on the point, the worker
ment Relations Act 1999) which gives the right tocould simply obtain an injunction to prevent the
a remedy for unfair dismissal to workers dis-purported dismissal.
missed for taking lawful industrial action within As this magazine goes to press the government
the first eight weeks. The employer purported toare now contemplating some more anti-union
sack the workers at Friction Dynamics the day laws this time to exclude collective bargaining in
the fire service and enable the government to
after the eighth week. But the tribunal found that
a letter sent by the employer (unwisely) on the impose terms and conditions. This too appears to
second day of the industrial action amounted to abe in breach of the international laws guarantee-
dismissal. So the later purported dismissal wasing the right to collective bargaining which the
irrelevant and the workers were dismissed within UK has ratified.
the eight weeks. But whilst the workers will now
be entitled to compensation the fact remains that
their jobs have been lost and reinstatement
orders are not automatic - indeed they are only
ordered in less than half a percent of cases. Even
where reinstatement is ordered the employer
may disregard the order, though enhanced com-
pensation will follow There is no provision for
the contempt of court proceedings, daily fines,
sequestration and other remedies for disobeying
a court order familiar to trade unions.
Friction Dynamics highlights the refusal of1 Report of the Committee of Experts on the Application of

successive governments including the presentConventions and Recommendations (Report III (Part 1A)), presented
one to abide by the international laws (above)
to the 90th Session of the International Labour Conference, 2002.
which the UK has ratified. In addition to the criti- 2 At 399-400.

cism mentioned above, the Blair government 3 See K D Ewing, Britain and the tLO, (2nd ed), 1994; J Hendy,

were told in December 1997 by the supervisory "Industrial action and international standards", in K D Ewing (ed.)

body of another treaty ratified by the UK, the Employment Rights at Work , 2001 , 1ER.
International Covenant on Economic, Social and 4 Now s.148 (3) Trade Union and Labour Relations (Consolidation)
Cultural Rights, 1966: Act 1992.

The Committee considers that failure to incor- 5 Wilson, Palmer and others -v- United Kingdom [2002] IRLR 1 28.
porate the right to strike into domestic 6law
Secretariat of the European Social Charter, Implementation of the
constitutes a breach of Article 8 of the European Social Charter, Survey by Country - 2002, 2002, Council of
Covenant. The Committee considers that the Europe.
common law approach recognising only7 the
European Committee of Social Rights, Conclusions XVI-1, vol.2,
freedom to strike, and the concept that strike
2002, Council of Europe.
action constitutes a fundamental breach of con- 8 At 683-690.

tract justifying dismissal, is not consistent with

9 RMT v London Underground [2001] IRLR 228 (CA); RMT v Midland
protection of the right to strike. The Com-
Mainline Ltd. [2001] IRLR 813 (CA).
mittee does not find satisfactory the proposal
10 Liverpool Employment tribunal, 4th December 2002, unreported

Page 29 Volume 10 Issue 1 2003 INTERNATIONAL union rights

This content downloaded from 49.150.1.21 on Tue, 08 Oct 2019 23:23:00 UTC
All use subject to https://about.jstor.org/terms