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International standards impacted the UK's legislative protection of the employee's individual right to strike
The aim of this thesis is to consider the current legislation in the UK on the right to strike to consider whether or not such right exists and if so where it can be found. The thesis will then look at European and International standards and assess how they have impacted on UK law and to what degree they have been followed by UK government. It will be concluded that UK law lags far behind many other countries and that the legislation does not empower employees in the UK with a right to strike. It will be argued that because of international standard and legislation the situation has improved however that a lot more needs to be done before we share the same kind of freedom as our European and International counterparts.
1.2 Introduction - The Right To Strike
It is almost impossible in the UK to take industrial action which is lawful. In some circumstances and for certain legal purposes immunities will be accorded to strikers; but contractual liability will always remain therefore as a general rule there is no right to strike and industrial action in the UK is unlawful. The slave has to work whether he likes it or not. Slavery denies to the enslaved their basic human rights. The slave is treated by the master like an unfeeling production unit, is kept and maintained while productive. The principle of the right to strike dates back to the days of slavery where a man had no right to withdraw his labour. The free man may withdraw his labour. He enters into a voluntary agreement with someone else in which he agrees to carry out some specified work in return for a specified amount of pay. If there is disagreement between them he may freely withdraw his labour. This is a most essential right, the right of every citizen, of every worker, to associate with others and withdraw his labour, to go on strike.A workforce which cannot withdraw its labour at will is either oppressed or enslaved. A free people have the right to strike and can exercise this right, supporting those who exercise it.
As Davidmann points out "The extent to which the right to strike is acknowledged and supported by a government's enacted legislation states clearly the extent to which its political philosophy and policies are authoritarian, class-biased and oppressive and the extent to which the working population can be subjected to oppression and exploitation through need".
There is a scale of management and government which ranges from 'fully authoritarian' at one end to 'fully participative' at the other One can place on this scale any system of running a company or of governing a country. This is done by considering to what extent decisions are being made at the various levels or whether people merely follow orders, to what extent people are free to withdraw their labour, are free to strike, to what extent authority is centred at the top, or where the balance of power lies between management and worker. The position where an organisation is placed thus depends on the balance of authority between ruler and ruled, between owner and worker, between the establishment and the population. And so the right to strike, and the extent to which people can strike, are fundamental freedoms which distinguish a participative government or management from an authoritarian one. In most European countries the right to strike is enshrined in, and protected by, a written constitution. The contract of employment of those who strike is considered suspended for the duration of the strike. It is not considered to have been broken.~
The UK has no written constitution and the right to strike is not protected. Under current legislation any striker in the UK is considered to have broken his contract of employment as all those on strike may be sacked together without compensation. They may be sacked selectively when the strike is 'unofficial'. The lack of protection applies regardless of the cause of the strike. So where an employer deliberately engineers a dispute it is the workforce which may be in breach of contract. The workforce is then exposed to dismissal without compensation, may lose redundancy payments, may be disqualified from unemployment benefit, and all without remedy for unfair dismissal.
The constitutions of France, Germany, Italy and Spain, to mention a few, protect the right to strike of the working population. The contract of employment is only suspended, not broken, during a strike.
With the United States it is more difficult to determine to what extent authority is centred at the top and to what extent it is balanced by the authority of the working population exercising their power through the withdrawal of their labour. The Taft-Hartley Act limits the right to strike, seemingly shifting responsibility for declaring a strike from the factory floor to the union head office. But an employer may not dismiss a striking employee during a lawful strike and, if he does so, must reinstate him.
The right of workers to withdraw their labour is guaranteed by a number of international treaties. As Novitz points out the "mounting awareness that modern erosion of democratic participation and human rights protection, including provision for workers' rights, necessitates greater co-ordination between international and European organisations and combined action " Different approaches to strike regulation at different levels can be problematic, she points out, "to the extent that regional organisations have the capacity to undermine the authority and application of global minimum standards ". Such disparities "can make national laws relating to industrial action, even those complying with ILO standards, vulnerable to the application of other EC treaty provisions or directives, such as those relating to free movement of goods or barriers to competition."
The freedom of workers to withdraw their labour has been justified on a number of grounds; the most important of these is its recognition as a fundamental human right . It has been described as being complementary to freedom from slavery and forced labour given that (at its extreme) denial of the freedom involves being forced to work against ones better judgement . There is also a democratic argument that is to say that such a freedom is intrinsic to the notion of democracy, a view reinforced by the fact that, conversely, it is banned in totalitarian societies. It may also be viewed specifically within the context of industrial relations as giving rise to an "equilibrium argument", which maintains that the concentrated power of capital, expressed in the capacity of employers to hire and fire workers and close down an enterprise, can only be matched by workers acting in concert. As Deakin and Morris point out "within this framework the collective withholding of labour is a vital weapon in an economic conflict which imposes cost in both parties: disrupted production on the one hand, lost wages on the other "
The 'autonomous sanctions" argument sees the right to recourse to industrial action as integral to the concept of collective bargaining as an autonomous norm-making system. Thus "those who have made the autonomous rules should wield the sanctions... " This view was recognised by Lord Wright who described the right to strike as "an essential element in the principle of collective bargaining. "
The right to strike is protected at an international level but only in treaties that deal explicitly with socio-economic rights, rather than civil and political rights. Therefore it can be seen that the International Covenant on Economic, Social and Cultural Rights guarantees the right to strike, although because it is subject to the proviso that "it is exercised in conformity with the laws of the particular country ", the substantive content of the right is limited.
At European level the European Social Charter requires contracting states to recognise "the right of workers and employers to collective action in cases of conflict of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into. " There is no right to strike contained within the ILO conventions No 87 on Freedom of Association and Protection of the Right to Organise or 98 on the Right to Organise and Collective Bargaining. The reason for this omission is not entirely clear but they have been described as "procedural difficulties, political differences, the feeling that specific elaboration was unnecessary, and workers' fears that specifying a right to strike would also lead to its restriction. " However the reality is that the right has been derived by the supervisory bodies from general freedom of association principles; the Committee of Experts on the Application of Conventions and Recommendations has consistently affirmed that this is one of the essential and legitimate means by which workers and their organisations may promote and defend their economic and social interests and, as such it is an integral part of the free exercise of he rights guaranteed by Conventions 87 and 98. On the basis of this view they have developed an extensive jurisprudence as to what this right entails. As will be discussed the UK law falls short of these standards in a number of significant respects.
The right to strike in the UK is however subject to certain restraints and it has been said that you cannot make a strike effective without doing more than is lawful. There are several ways in which common law and statute now regulate and control strikes:
- breach of the worker's contract of employment;
- liability of unions for economic torts of inducing breach of contract, or trade or business intimation and conspiracy;
- Government emergency powers;
- Residual criminal liability, which is mainly concerned with conspiracy and control of picketing;
- A union member's right to remove authorisation by the union for strikes and industrial action held without a proper ballot;
- The right of a member to complain of indemnification by his union of individuals who take part in industrial action .
- The right of a member to complain of indemnification by his union or individuals who take part in industrial action
- The right of a member to complain of unlawful application of union assets by trustees of unions
2. UK Law and the Right to Strike
2.1 The Trade Union and Labour Relations (Consolidation) Act 1992
It is important before discussing in detail how many of these provisions work in practice, to set out the relevant provisions of the Trade Union and Labour Relations Act, S219 of the act, as amended provides that:
- An Act done by a person in contemplation or furtherance or a trade dispute shall not be actionable in tort on the ground only -
- that it induces another person to break a contract or interferes with its performance; or
- that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.
- An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination will be actionable in tort
- Nothing in subsections (1) and (2) prevents an ac done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared unlawful by section 220 .
- Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirements of ballot before action by trade union) and 234A (requirement of notice of employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person excluded from that protection as respects that person.
The act also provides for statutory intervention in the area and prohibits unions indemnifying individuals for penalties for criminal offences or for contempt of court. At one time several unions made provision in their rules for indemnifying members, in particular officials, for specified unlawful acts. This practice is now prohibited and any payments made are recoverable from the recipient at the suit of the union or an individual member on behalf of the union where he or she claims the unions failure to act is "unreasonable ". This was condemned by the ILO Committee of Experts in its 1989 report in the following terms:
"The Committee has consistently taken the view that legislative provisions which are intended to ensure sound administration and the honest and efficient management of union funds and other funds and assets are not incompatible with the Convention.... However such provisions should not be of such a character as to deprive unions of he right to draw up their constitutions or rules and to organise their administration and activities free of interference of the public authorities - nor should they deny trade unions the right to utilise their funds as they wish for normal and lawful trade union purposes. [this provision] appears to do both of these things "
In more recent reports, however the Committee took a less confident tone, appearing to acknowledge that the government's case which included the argument that where penalties were imposed on an individual, rather than a union, this would "imply a clear finding of wilful and unlawful action by the individual ". However it is maintained the view that indemnification of legal liabilities incurred on behalf of the union should be possible. The European Committee of Social Rights also take the view that in principle unions should be free to use their property as they consider appropriate.
2.2 The Effect of Industrial Action on Individual Contracts of Employment
As the most fundamental contractual obligation of an employee is to be ready and willing to serve the employer, the action of going on strike is likely to be regarded s constituting a breach of contract, giving the employer the right to dismiss summarily. In theory it may also entitle the employer to sue the employee for damages , although in practice the employer's common law power to withhold wages in respect of non-performance. The orthodox view is that industrial action will be unlawful however it is organised, and even if strike notice is given it will be construed merely as notice of an impending breach . However this orthodox view was challenged by Lord Denning MR in Morgan v Fry where he suggested that where strike notice adequate length was given, the strike was not unlawful, since the notice had the effect of suspending the contracts, not breaking them:
"The truth is that neither employer nor workmen wish to take the drastic action of termination [of the contracts of employment] if it can be avoided. The men do not wish to leave their work forever. The employers do not wish to scatter their labour force to the four winds. Each side is, therefore, content to accept a "strike notice" of proper length as lawful. It is an implication read into the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strike and revives again when the strike is over "
The Donovan Commission considered the possibility of introducing the concept of suspension through strike notice, but thought it surrounded by problems ; in spite of this, it was introduced by the Industrial Relations 1971, s14, but disappeared with the repeal of that in 1974. The whole question arose for consideration by the EAT in Simmons v Hoover Ltd where, in reaffirming that an employer has a right to dismiss a striking employee, Phillips J held that there is no common law doctrine of suspension by strike notice, and refused to apply Lord Denning's views in Morgan v Fry. He considered that those views were out of line with the modern statutory provisions relating to strikes, which operate on the assumption that participation in a strike is repudiatory conduct entitling the employer to dismiss, and then graft on special rules Simmons v Hoover Ltd shows a clear move back to the original view of strikes as breaches of contract and any mitigation of the potential harshness of this must be found in legislation.
2.3 The Effect of Industrial Action on Statutory Employment Rights
Participation in a strike or other industrial action is likely to have a highly detrimental impact on an employee's statutory employment rights. The most serious consequence is likely to be the potential loss of the right to bring proceedings for unfair dismissal but other statutory rights of a striking employee will also be affected:
- the restrictions on deductions from pay do not apply to deductions in respect of a strike or other industrial action in which the employee took part;
- a striking employee's right o a redundancy payment may be jeopardised
- a week during which an employee takes part in a strike will not count for the purposes of calculating that employee's continuity of employment
- an employee is not entitled to a statutory guarantee payment where the failure to provide work is in consequence of a strike, lock-out or other industrial action involving his employer or an associated employer
- an employee may be disqualified from receiving statutory sick pay where there is a stoppage of work due to a trade dispute at his place of work
- rights to state benefits (for example jobseekers allowance) will be materially affected .
2.4 Industrial Action and Unfair Dismissal
When an employee strikes, their employer has the contractual right to dismiss them although this is very rarely exercised. Despite this being the case such dismissals can be unfair; indeed following the reforms introduced by the Employment Relations Act 1999, a dismissal may be automatically unfair where the employee is dismissed for taking "protected industrial action." This protection is however contingent on the industrial action in question being official and normally lasting for no longer than eight weeks. If these requirements are not satisfied the pre-1999 law will still apply, which means that in some circumstances an employment tribunal will have no jurisdiction to hear an unfair dismissal complaint, while in others the tribunal will only be able to consider the complaint on its merits if the employer has discriminated between the participants by selectively dismissing or re-engaging them.
An employee has no right to bring an unfair dismissal complaint where at the time of the dismissal the employee was taking part in an unofficial strike or other unofficial industrial action. The only exception is where it is shown that the dismissal was for family reasons, or because the employee has taken specified action in relation to health and safety, has acted as an employee representative or has made a protected disclosure under the "whistleblowing" provisions. In such cases, the dismissal will be automatically unfair; in all other cases, the reason for the dismissal is wholly irrelevant.
Where the industrial action is official, the present position is that the dismissal will be automatically unfair if the reason for the dismissal is that the employee took "protected industrial action ", and one of the following three conditions is satisfied (i) the dismissal took place within eight weeks of the day on which the employee started to take protected industrial action; (ii) the dismissal took place after the end of that eight week period, but the employee has stopped taking protected industrial action before the end of that period or (iii) the dismissal took place after the end of the eight week period and the employee had not stopped taking part in the industrial action before the end of that period, but the employer had failed to take reasonable procedural steps to resolve the dispute. Industrial action is "protected" for those purposes If the employee is induced to take part in the industrial action "by an act which by virtue of section 219 is not actionable in tort "; in other words, the protection for the individual participants is contingent upon the union having complied with the complex legal requirements governing the organisation of industrial action; including the balloting requirements and the restrictions on certain forms of industrial action. As seen above, the unfair dismissal protection normally lasts for only eight weeks. However, a dismissal for taking protected industrial action will still be unfair where the industrial action has lasted for more than eight weeks, if he employer has failed to take "such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates. " In deciding whether the employer has taken reasonable procedural steps, the tribunal must have regard to whether the employer or the union had complied with the procedures laid down in an applicable collective agreement, and whether, afer the start of the protected industrial action, either party had offered or agreed to commence or resume negotiations, had unreasonably refused a request to use mediation services in relation to the procedures to be used to resolve the dispute.
Where the industrial action is official but is not protected within the meaning of the new provisions, a tribunal will not have jurisdiction to consider an unfair dismissal complaint where, at the date of dismissal, the employer was conducting or instituting a lock-out or the complainant was taking part in a strike or other industrial action, unless the employee shows that either:
- one or more relevant employees have not been dismissed; or
- a relevant employee has, before he expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and the complainant has not been offered re-engagement.
If the dismissals are selective, or only some of the relevant employees are selected for re-engagement, the tribunal will then have jurisdiction to consider the case in the ordinary way, which means that they must consider the reason for the dismissal, and, if it is a prima facie fair one, the reasonableness of the decision to sack or not to re-engage that particular employee in those circumstances; a selective dismissal is therefore not automatically unfair as such, and the employer may be able to show that it was reasonable in all the circumstances to dismiss or not to re-engage some of the strikers. If the dismissal is held to be unfair the tribunal is not entitled to take into account the mere act of participating in industrial action in deciding whether to reduce the award of compensation on the grounds of contributory fault, but the award may be reduced where there is individual blameworthy conduct by the applicant, additional to our separate from the mere act of participation in the industrial action, which contributed to the dismissal and which was sufficiently blameworthy to make it just and equitable for the tribunal to reduce the compensation .
There has been some difficulty in interpretation of what amounts to strike action. In some cases, the dominant consideration for the tribunals in determining whether the circumstances amount to a strike or other industrial action within the meaning of the Act has been the purpose for which the action in question was taken, and in particular whether it involved the application of pressure on the employer . As an example in the case of Rassool v Hepworth Pipe Co (No 2) , the EAT held that attendance at an unauthorised union meeting during working hours did not amount to industrial action because the purpose was to discuss wages and not to apply pressure on the employer, even though the meeting did in fact result in some disruption of the production. However, while it is undoubtedly true that industrial action will usually be taken for the purpose of putting pressure of putting pressure on the employer, there may be circumstances where action is taken for a social or political rather than and industrial motive and it is highly likely that such action would in practice be held to be industrial action. Great emphasis is therefore likely to be placed on the nature and effect of the action, rather than the reasons for it .
It is clear that the technical question of whether the action is in breach of contract is not conclusive, although once again it may be taken into account as a factor. Usually a strike will involve a breach of contract, but the lack of a need to show such a breach could be important in the case of a lock-out or, more especially, in cases of "other industrial action" - a wide phrase would have been held to cover not just actions arguably in breach, but also actions clearly not in themselves in breach, such as a refusal to work voluntary overtime which, if done collectively and with a coercive purpose, may constitute industrial action even-though individually each employee was perfectly entitled to refuse it .
The right to complain of unfair dismissal is only removed from employees who were "taking part" in a strike or other industrial action at the date of the dismissal. Here, again the court of Appeal has emphasised that the question of whether or not an individual is "taking part" is ultimately a question of fact for the tribunal , but the cases nevertheless proved some guidance as to the correct approach. In Coates v Modern Methods and Materials Ltd , the employee has stayed away from work during the strike because she was frightened of crossing a picket line. The majority of the Court of Appeal held that the test to be applied is an objective one, focusing on what the employee in fact did, and not on her motivation; as Stephenson LJ put it ".... Participation in a strike must be judged by what the employee does and not by what he thinks or why he does it"
It therefore follows that employees who are absence from work due to sickness or holiday leave during the industrial action may still be held to be taking part in it, particularly if they associate themselves with the strike. However, it seems that clear evidence of participation will be required before an employee who is off sick when the action begins will be found to be participating in it . Just as the employee's subjective motivation is irrelevant, so is the subjective knowledge on the part of the employer, so that the employer's reasonable but mistaken belief that the employee is taking part in the industrial action will not be sufficient if the employee 's actions and omissions do not justify the conclusion that he was in fact taking part in the action
A threat to take industrial action does not of itself amount to taking part in industrial action within the meaning of the Act , but where an employee has stated his intention of joining the existing industrial action, he may be taking part in that action before the time when he is contractually due to work in fact arrives . In Lewis and Britton v E Mason & Sons , an employee was dismissed for refusing to drive a heavy goods vehicle which did not have an overnight heater unless he was given the allowance to cover the cost of overnight accommodation. On learning of the dismissal, one of his colleagues threatened the employer that there would be a strike the following day unless the dismissed employee was reinstated. The EAT controversially held that it was open to the tribunal to find that by making a definite threat not to come to work the following day, at a time when further negotiation could not have been allocated by the employer, the employees were taking part in industrial action.
Where the industrial action is not official but not protected under the new provisions, the tribunal will have jurisdiction to determine the fairness of a dismissal where the employer has discriminated between "relevant employees" by selectively dismissing or selectivity re-engaging them. As defined in section 238(3) "relevant employees" means:
- in relation to a lock-out, employees who were directly interest in the dispute in contemplation or furtherance of which the lock-out occurred; and
- in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of dismissal were taking part in the action.
In the case of strikes and other industrial action, the definition of "relevant employees' is restricted to those taking part in the action at the date of the complainant's dismissal but Before 1982, the definition of relevant employees included all those who had taken part at any stage in the industrial action, so that an employee who had been on strike but had returned to work before the dismissal occurred was still a relevant employee. Accordingly, in Stock v Frank Jones (Tipton) Ltd , the House of Lords held that there had been selectivity where the employer had not sacked two employees who had returned to work before the date of the dismissals, so that the applicant could bring her case. The Employment Act 1982 reversed the decision in that case, thus enabling an employer to issue an ultimatum to those taking part in industrial action to return to work or face dismissal and then to dismiss all those who fail to comply, while still retaining the protection of the section against unfair dismissal proceedings brought by the dismissed employees.
A second significant amendment made by the 1982 Act was to introduce a time limit on re-engagement of relevant employees, so that the anti-discrimination provisions only apply where a relevant employee is offered re-engagement within three months of his dismissal; thereafter the employer is free to re-engage strikers selectively without conferring jurisdiction on the tribunal. Before 1982, any such re-engagement would lay the employer open to an unfair dismissal complaint, even if the taking on was at some time in the future . The time limit also enables the employer to make an initial limited offer of re-engagement - in effect sanctioning a "cooling off " period and a phased return to work - provided that all those dismissed have been offered re-engagement within three months of their dismissal . The third amendment introduced by the 1982 Act dealt with the situation where there is industrial action at some or all of the plants of a multi-plant employer. Up to that time, if the industrial action all formed part of one dispute, the non-selectivity rule had to apply to all plants , so that an employer could not adopt a different approach to the industrial action in different plants, for example by dismissing the workforce at one plant but not another. However the 1982 Act restricted the definition of "relevant employees" to those employed "at the establishment of the employer at or from which the complainant works" so that any application of the selectivity principle has to be done on an establishment -by-establishment basis. One further potential difficulty for a large employer operating from several sites is that an employee dismissed for taking part in industrial action might be mistakenly re-engaged at another site within the three months period , so opening up the employer to unfair dismissal complaints by those not re-engaged. However the EAT has held that for there to be an effective offer of re-engagement, the employer must have actual or constructive knowledge of the job from which the employee was dismissed and the reason why he was dismissed .
The principle of non -selectivity was clearly weakened by the Employment Acts of 1982 and 1990, and further marginalised by the Employment Relations Act 1999, but where it still applies the basic concept remains that the employer must dismiss all or none if he is to rely on the exclusion. In most cases this narrows the scope of the exclusion in the employee 's favour, but it has been argued that the whole concept of the exclusion is potentially too wide in a case where the employer is in fact willing to dispense with one whole group of employees, who may be deprived of their unfair dismissal rights in two ways - first , by the employer instituting a lock-out affecting them all, which is now treated in the same way as a strike; and secondly, because the employer might try to goad the employees in question into taking industrial action and then dismiss them all . In Thompson v Eaton Ltd , Phillips J suggested that the second possibility might be countered by the concept of an engineered strike which would not fall within the exclusion. However in Marsden v Fairey Stainless Ltd , the EAT disapproved of this idea of an engineered strike, pointing out that the wording of he section simply requires the employee to have been dismissed while on strike, so that the exclusion will apply even if the industrial action was provoked by the employer.
2.5 Employment Relations Act 2004
The Employment Relations Act 2004 (Commencement No 2 and Transition Provisions) Order 2004 SI 2004/3342 brought into force on 31 December 2004 the provisions of sections 15, 18, 33, 34, 36, 39 and 54 of the Act (with consequential amendments and repeals). The gist of sections 15, 18, 39 and 54 is to amend or extend the Secretary of State's powers to make orders, either generally or in relation to the statutory recognition procedure and voting methods in ballots and elections under TULR(C)A1992. Section 33 permits a trade union to exclude or expel an individual for taking part in the activities of a political party; section 34 makes consequential amendments to the jurisdiction of tribunals in such cases. Section 36 is a clarifying provision relating to national security cases.
The Employment Relations Act 1999 also provides, subject to conditions, unfair dismissal protection for those dismissed because of their involvement in protected industrial action. This is achieved by inserting a new section 238A into the Trade Union and Labour Relations (Consolidation) Act 1992. The overall effect of these new provisions is that the dismissal of an employee for taking lawfully organised, official industrial action is automatically unfair dismissal if:
- it takes place within twelve weeks of the employee commencing industrial action;
- it occurs after this 12 week period but the employee had returned to work before the end of the 12 weeks; or
- it occurs after this period and the employer has not taken all reasonable steps to resolve the dispute.
This obviously amends the provision as discussed above and is an extension on the 8 week period. This new provision is in the main the effect of the decision in Davis. Given the political significance to the trade union movement of the law change, it is slightly surprising that only now are the first cases coming to the Tribunal to test its provisions. Compliance with the law was certainly not the position adopted by the employer in Davis v Friction Dynamics one of the first tribunal decisions on the new provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 which sets out the limited unfair dismissal rights to workers engaged in 'protected industrial action'. The section only gives protection to official industrial action which complies with the labyrinthine rules on trade disputes, giving of notice, postal balloting, calling action and the like. It then gives workers the right to bring an unfair dismissal complaint either if:
- the dismissal takes place within the period of eight weeks beginning when the action started or
- where dismissal takes place later, if the employer has failed to take reasonable procedural steps to resolve the dispute.
In Davis the workers at a factory were faced with unilateral management action to remove the workers' contractual rights to have their terms and conditions determined by a collective bargain. The employer also took steps to remove union involvement at the workplace. The workers balloted for industrial action and a strike was called. On the first day of the strike the employer wrote a letter to each of the strikers, stating that 'You have taken industrial action and by doing so have repudiated your contract of employment'.
A manager had consulted a text book before writing this letter, adding the word 'bingo' against a passage indicating that the whole of a striking workforce could be sacked without anyone being able to claim for unfair dismissal (the same manager deleted the word on the document which went to the tribunal, not realising that the applicants had already copied it). Such is the practice of enlightened management in the 21st century.
After this the employer imposed holidays and refused to allow the workers to return to work. Some meetings took place, in which ACAS was involved. It was confirmed by various witnesses, including an MP, that the American managing director, Craig Smith, viewed the strikers as 'history'. Eight weeks after the strike began, the employer sent further notices to the strikers sacking them all. Against this background the tribunal considered s.238A of the 1992 Act. Perhaps remarkably given the impenetrability and complexity of the provisions on calling lawful industrial action, the workers here complied with the many duties on balloting etc., and this was unchallenged by the employers.
The tribunal found in the applicants' favour on two grounds. The letter written to the employees on the first day of the strike was an unambiguous letter of dismissal, so that the workforce was dismissed during the eight week period and the dismissal was unfair. In the alternative, it held that the employer failed to attend meetings and deliberately sought to obstruct settlement talks, so that it had not taken reasonable procedural steps. The significance of this failure was that it extended the period of protection from dismissal for the striking workforce beyond the eight week period.
For this purpose, protected industrial action is for most practical purposes likely to be an official strike (more accurately it is any act or series of acts which an employee "is induced to commit by an act which by virtue of is not actionable in tort.
This means that if the circumstances are such that a trade union can take advantage of the immunity from civil action provided for trade unions operating "in contemplation or furtherance of a trade dispute " if they induce workers to break their employment contracts by downing tools or coming out on strike then that will be protected industrial action.
The effect of this provision is that an individual who is dismissed for taking part in an official strike will be able to claim automatic unfair dismissal, the most important of which is that the protection normally continues for the first 8 weeks of the strike, known as "the protected period".
TULRCA 1992 new s.238A, introduced by Employment Relations Act 1999 sch.5, provides automatic unfair dismissal protection for an employee who is dismissed because he took part in protected industrial action.(see above) if the dismissal
- "takes place within the period of eight weeks beginning with the day on which the employee started to take protected industrial action" or
- "it takes place after the end of that period, and..... the employee had stopped taking protected industrial action before the end of that period" or
- "it takes place after the end of that period [and] the employee had not stopped taking protected industrial action before the end of that period, [and] the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates".
The DTI when undertaken their review of the Employment Relations Act 1999 , initially did not consider that an extension to this eight week period was appropriate. They indicated that since the introduction of he Employment Relations Act 1999 there had only be one tribunal decision that had been decided under the new jurisdiction. In drafting the Employment relations Act the Government was conscious that most strikes are short-lived. The DTI point to estimates that were based on the strike data collected by Office of National Statistics that show that in the period January to September 2002, 12 industrial disputes (around 1in 10 of all disputes) lasted longer than 8 weeks. The DTI therefore argued in their consultation paper that this period covers the bulk of industrial action, and, as mentioned above, the Act's protections extend beyond this period where it can be shown that the employer failed to take the steps needed to settle the dispute. The DTI argued that this arrangement provides incentives to encourage both employers and unions to resolve their trade disputes and that this advantage would be lost if the period of automatic protection were extended indefinitely as some unions wish. Such an extension would also mean that employers could never take lawful action to dismiss strikers, and recruit a permanent replacement workforce, in the small number of very long-running disputes where all scope to reach resolution has been exhausted.
The DTI also agreed with the government's decision not to increase applications can be made to Tribunals. In particular, there is no reason to introduce interim relief for this category of case. Interim relief is a near-instant remedy where a wrongfully dismissed person is reinstated or is paid normal wages until a full Tribunal hearing occurs. Both forms of relief are clearly inappropriate where strike action is in effect ongoing. These elements of the legislation have been retained, but the Government is concerned that the Act's protections might be weakened by the use of the 'lock-out' tactic. As currently drafted, the legislation might encourage employers to sit out the 8-week period of automatic protection by preventing any return to work by strikers. This would exacerbate a dispute and possibly prompt a union to extend its strike activity in response. 'Lock-outs' are rare in this country, though unions allege it occurred in the Friction Dynamics case. This would mean that the days when employees wanted to return to work but could not do so because of a lock-out would not count for the purposes of the 8-week period. So, if an employer locked out his striking workforce during the second week of a dispute, then the total period of protection would be extended by a further week (from 8 to 9 weeks) to offset the effect of the lock-out.
The amendments were made to the lock out period and the eight week period has now been extended to twelve weeks. These new sub-sections will ensure that periods of lock-out will not count towards the 12 week protected period. This change to exclude "time locked out" from the protected period follows the friction dynamics case as detailed above.
3. European Law and The Right to Strike
3.1 European Union
There is support for the view that there is a fundamental right in EC law for workers to take collective action, although issues as to the proper scope of such a right remain undetermined . The Charter of Fundamental Rights of the European Union affirms the right of workers and employers, or their respective organisations, to take collective action, including strike action, in cases of conflicts of interest, but this is to be exercised "in accordance with Community law and national law and practices ". In practice there is no European standard.
3.2 European Social Charter
The European Social Charter 1961 expressly recognises the right to strike:
"with a view to ensuring the effective exercise of the right to bargain collectively the Contracting Parties... recognise... the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike... "
The difference between the European Social Charter and the European Convention of Human Rights is that the Convention is considered to be binding in all its Articles whereas Member States may choose which Articles of the Charter to adopt, the ECHR has expressed the view that if the Convention were held to contain, by implication, a right specified in the Charter, it would "amount to admitting that the 1961 Charter took a retrograde step" in allowing States to choose not to adopt the right.
The reality is that the ECHR does have regard to the Charter in interpreting the Convention though it plainly does not regard it as binding. The United Kingdom courts have paid the Charter little regard. Within the United Kingdom's margin of appreciation Articles 5 and 6 of the Charter should provide guidance since the United Kingdom has chosen to ratify both and is therefore amongst those Contracting Parties which undertake "to consider themselves bound by the obligations laid down in the following articles". The parts of Articles 5 and 6 directly relevant to the present discussion of freedom of association and the right to strike are as follows:
Article 5--The right to organise "With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom..."
Article 6--The right to bargain collectively
"With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:
- to promote joint consultation...
- to promote... machinery for voluntary negotiations with a view to the regulation of terms and conditions of employment by means of collective agreements;
- to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise;
- the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into."
The right to take "collective action" "including the right to strike" in Article 6(4) clearly encompasses all forms of industrial action in cases of conflict of interest, but does not protect political strikes.
Though the right to take industrial action is found in Article 6 as part of the provision on collective bargaining and relations with employers, it is nonetheless an aspect of Article 5 and freedom to organise. The Parliamentary Assembly has:
"stress[ed] the fact that collective action, an essential element of freedom of association, is recognised in international law as one of the fundamental rights of workers, and that accordingly States should make every effort to prevent infringement thereof ".
The Governmental Committee have described Article 6(4) in the following terms:
- "... Art. 6(4) recognised those aspects of the right to strike which were essentially common to the Western democracies, and the Committee's approach was to attempt a definition--albeit incomplete--of this common denominator by clarifying the maximum restrictions on the right to strike permitted by Art. 6(4), and to ascertain whether any particular feature of existing national rules would be liable to conflict with it"....
- "As it had already had occasion to point out in its 5th report to the Committee of Ministers, the Committee reiterated that it would be difficult to reconcile recognition of the right to strike with termination of the work contract, and so the majority of the Committee (excepting one delegation) considered that termination of the work contract, as a result of strike--unlike the suspension of that contract--was not compatible with Art. 6(4)."...
- "The Committee unanimously held that a State could comply with Art. 6(4) if its legislation or practice enabled the employer to take legal action against strikers for economic damage where the strike was not covered by Article 6(4). The Committee took the expression "economic damage" to mean damage resulting from the strike itself (e.g. reduction or halting of production).
However, the majority of the Committee (excepting one delegation) held that a State could not comply with Art. 6(4), if its legislation or practice enabled the employer to take legal action against strikers for economic damage when the strike was covered by Art. 6(4)".
The Committee of Independent Experts have:
"examined the compatibility with the Charter of a rule according to which a strike terminates the contracts of employment. In principle, the Committee takes the view that this is not compatible with the respect of the right to strike as envisaged by the Charter. Whether in a given case a rule of this kind constitutes a violation of the Charter is, however, a question which should not be answered in the abstract, but in the light of the consequences which the legislation and industrial practice of a given country attach to the termination and resumption of the employment relationship. If in practice those participating in a strike are, after its termination, fully reinstated and if their previously acquired rights, e.g. as regards pension, holidays, and seniority in general, are not impaired, the formal termination of the contracts of employment by the strike does not, in the opinion of the Committee, constitute a violation of the Charter ".
In its last report, the United Kingdom Government argued that employees are fully aware, when deciding, on a secret ballot to take collective action, that their action entails the breach of their work contract and that, on the other hand, it would be impracticable to require employers to keep jobs open indefinitely. Moreover, employers' power to dismiss employees on strike ensures a "proper balance" between management and labour.
In 1995 the Committee again repeated its negative conclusions in relation to dismissal of strikers and made a number of observations about other statutory restrictions on the right to strike. In 1996 the Governmental Committee too reiterated its negative conclusions and proposed a further "recommendation" which the Committee of Ministers duly adopted on January 15, 1997.
Thus the very basis for the most fundamental legal inhibition on the right to strike in the United Kingdom is challenged by the Charter's jurisprudence at the very highest level: breach, by the act of taking industrial action, of the contract of employment giving the employer the right to terminate it. Whilst restrictions on the right, inter alia, to collective action are permissible under Article 31 of the Charter they do not justify the universal unlawfulness consequent on the breach of contract rule.
With the Charter the discussion of the jurisprudence directly applicable to Article 11 of the Convention concludes. It is now appropriate to consider other materials likely to be taken into account by the United Kingdom courts on the issue of freedom of association and the right to strike.
3.3 Human Rights Act 1998
Article 11 of the European Convention of Human Rights (ECHR) states that everyone has a right to freedom of association, including the right to form and join trade unions for the protection of his interests (given direct effect in English Law by the Human Rights Act 1998). The Article does not expressly include a right to strike and the main arguments brought before the European Court of Human Rights have concerned the measures taken by employers to restrict industrial action.
Article 11, headed "Freedom of Assembly and Association", reads as follows:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State".
In UNISON v United Kingdom it was held that:
"While Article 11(1) includes trade union freedom as a specific aspect of freedom of association this provision does not secure any specific treatment of trade union members by the State. There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most, Article 11 may be regarded as safeguarding the freedom of trade unions to protect the occupational interests of their members. While the ability to strike represents one of the most important of the means by which trade unions can fulfil this function, there are others. Furthermore Contracting States are left a choice of means as to how the freedom of trade unions ought to be safeguarded".
Any consideration of case law should bear in mind two important points. The first point is that the ECHR allows a substantial "margin of appreciation" to national courts in their application of the Convention . This means that the United Kingdom courts will be much freer in their approach to the Convention, than is permitted in their construction of, say, E.U. Treaty provisions or directives. Furthermore, on Article 11 matters, the margin of appreciation allowed to national courts is significantly wider than in relation to other Convention provisions.
The second noteworthy point is that there are authorities in the United Kingdom which held, even before incorporation was proposed, that statutory provisions which are unclear or ambiguous should be construed , judicial discretion should be exercised , and uncertainties in the common law should be resolved, consistently with the Convention. It has been held that even where the common law is certain regard must be had to the Convention .
On the face of it Article 11 confers no rights in relation to trade unions other than the right, in effect, merely to hold a union card in association with others. There is no express inclusion of any right derived from this. However, the ECHR has unambiguously held that there are implied rights. The Court has thus held that there is an implied negative right to dissociate in Article 11 . The Court has rejected a narrow construction of the words and held that from the express positive right at least one other positive right is to be derived . Two cases are of particular relevance.
In the case of Swedish Engine Drivers' Union v. Sweden the issue was whether Article 11 meant that a union could require a State employer to reach a collective agreement with it. The Court held that Article 11 did not extend so far, certainly where the union, on the facts of the case, had the right to represent its member's vis-à-vis the employer. However the Court was emphatic that from Article 11 there was to be derived a positive inferred right that a union be heard on behalf of members in order to protect their interests.
"The Court does not, however, accept the view expressed by the minority in the Commission who describe the phrase 'for the protection of his interests' as redundant. These words, clearly denoting purpose, show that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. In the opinion of the Court, it follows that the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11(1) certainly leaves each State a free choice of the means to be used towards this end. Whilst the concluding of collective agreements is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests ."
In the case of National Union of Belgian Police v. Belgium the issue was whether the union could insist on being consulted on behalf of its members by the authorities. The court held that Article 11 does not require domestic law to allow unions (or their members) to insist on any particular form of being heard, but does require that they have the right to some mean(s) of being heard. This right the Court derived from the right of union membership. The question is to what forms of activity and to what extent this derived right will extend.
The approach of the European Court gives each Member State a wide discretion in such matters. In Gustafson v. Sweden it was held that:
"In view of the sensitive character of the social and political issues involved in achieving a proper balance between competing interests and, in particular, in assessing the appropriateness of State intervention to restrict union action aimed at extending a system of collective bargaining, and the wide degree of divergence between the domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in their choice of means to be employed".
Whilst the breadth of the margin of appreciation cannot be so large as to permit Contracting States to maintain laws which permit employers to deny all and every "means" by which employees could exercise their right to be heard via their union, this approach, on its face, would enable the United Kingdom to maintain restrictions on various trade union activities so long as there was some way that unions could make themselves heard.
The United Kingdom courts have a wide margin of appreciation in which much of the United Kingdom law on strikes may remain unchallenged by the Convention. None the less it must be arguable that United Kingdom law is incompatible with Article 11(1) where workers who can demonstrate that they are without any other means of exercising the right to be heard are denied the right to strike by legal restraint unjustified by Article 11(2) limitations .
In conclusion the Human Rights Act 1998 does not furnish the worker with a general right to strike. This was the clear conclusion that was reached by the court in the Schmidt and Dahlstrom v Sweden. This case concerned collective bargaining practices in Sweden. In the event that national pay negotiations continued beyond the date on which the annual pay increase was due to take effect, the normal practice was to give retroactive effect to the pay increase when it was finally agreed. However , it was a principle of the system that the members of any union which chose to strike during the period would automatically forfeit the right to benefit from the retroactive effect.
The applicants claimed that the practice violated their rights under Article 11. However the court found against them. It reasoned that the right to strike was not inherent in the right to freedom of association, and accordingly the state was free to restrict the right to strike as it saw fit.
4. International Law and The Right To Strike
4.1 International Labour Standards
The International Labour Organisation Convention 87 provides that workers shall have the right to establish and join organisations of their own choosing ; and that "workers and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes " Whilst the convention does not set out an express right, it is, however, impliedly protected as are the essential means available to workers and their organisations for the promotion and protection of their social and economic interests. This view is held by the committee of experts of the ILO who have stated on a number of occasions that English law fails to provide adequate protection of their right to strike by its limited definition of trade disputes and by the restrictions on secondary action.
Convention 87 on Freedom of Association and the Protection of the Right to Organise (1948) is the most relevant in the present context and the jurisprudence of the ILO bodies in relation to it is extensive. Convention 87 provides in Article 2 that:
"Workers... without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation."
Article 3(1) provides that:
"workers... organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes."
Article 8(2) provides that:
"The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention."
Article 10 provides that:
"... the terms 'organization' means any organization of workers or of employers for furthering and defending the interests of workers or of employers."
By Article 11 each Member State of the ILO undertakes:
"... to take all necessary and appropriate measures to ensure that workers... may exercise freely the right to organise."
ILO jurisprudence makes clear that the right to union membership is not restricted to the right to hold a membership card. It holds that the right to membership also involves the right, through union membership, to protection of the members' interests by the union . It has also determined that Convention 87 involves a right to strike.
The ILO "has always regarded the right to strike as constituting a fundamental right of workers and of their organisations:...," and "... has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests." "The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests ."
The Committee on Freedom of Association in 1952 held that the right to strike was an "essential [element] of trade union rights ".
The ILO bodies recognise a number of restrictions on the right to strike as being compatible with ILO Conventions. They have also heavily and extensively criticised some of the restrictions on lawful strike action imposed by United Kingdom law. For the most part the condemnations have been directed to the subsequent legislative restrictions on the statutory immunities which contained in the Trade Union and Labour Relations Act 1974 as amended in 1976.
The central violation is one set out in general terms:
"The [ILO] also emphasizes that the maintaining of the employment relationship is a normal legal consequence of recognition of the right to strike. However, in some countries with the common-law system strikes are regarded as having the effect of terminating the employment contract, leaving employers free to replace strikers with new recruits. In other countries, when a strike takes place, employers may dismiss strikers or replace them temporarily, or for an indeterminate period. Furthermore, sanctions or redress measures are frequently inadequate when strikers are singled out through some measures taken by the employer (disciplinary action, transfer, demotion, dismissal); this raises a particularly serious issue in the case of dismissal, if workers may only obtain damages and not their reinstatement."
This principle has been applied to United Kingdom law specifically. On a reference to the National Union of Seafarers about the dismissal of 2000 members employed by P&O European Ferries in 1988, the Committee on Freedom of Association held:
"Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike ."
On an application by the TUC and National Union of Mineworkers in 1988, the Committee of Experts noted:
"that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action to protect and to promote their economic and social interests. It is most important, therefore, that workers should have some measure of protection against civil liability .
The Committee considers that it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal...
In this connection, the Committee notes that at common law strikes and most other forms of industrial action constitute a repudiatory breach of the individual worker's contract of employment. This has the consequence that the employer may lawfully treat the employment relationship as at an end without more ado.
The Committee also notes that a lock-out would also constitute a repudiatory breach of the contracts of employment of the workers concerned. However common law does not provide a means whereby those workers could obtain reinstatement in their employment, no matter how arbitrary or unreasonable the employer's behaviour had been. Furthermore, it would be in only very exceptional circumstances that such workers could obtain other than nominal damages at common law.
It is clear, therefore, that the common law does not accord workers who have been dismissed in connection with a strike, lock-out or other form of industrial action the right to present a complaint against the dismissal to a court or other authority independent of the parties concerned. The same is true of statutory provision relating to unfair dismissal--subject to the limited measure of protection found in the statute. The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention..."
Despite the UK's insistence that the rights of employers to discipline or dismiss strikers "had always been the case" under the common law, the Committee restated its views that the common law violated the right to strike protected under Convention 87, in 1992 , 1993 , 1995 and 1997 .
The jurisprudence of the ILO is very clear on the existence of the right to strike and its violation by the common law breach of contract rules. The ILO is the principal international repository for international labour standards and that, together with the fact that its jurisprudence on the point is consistent with the European sources discussed, should lend it persuasive weight.
4.2 The ICESCR
Article 8 of the ICESCR elaborates freedom of association as it applies to trade unions as follows:
"1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country;
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorise States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention".
It might be thought that Article 8(1)(d) would allow national law to place all manner of restrictions on the right to strike. However, the U.N. Committee on Economic, Social and Cultural Rights (the supervisory body for the ICESCR) has held that domestic laws which undermine the right to strike are in breach of the Article. As recently as December 4, 1997 the Committee held in its periodic survey of the application of the Covenant to the United Kingdom :
"11. The Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike. The Committee does not find satisfactory the proposal to enable employees to go on strike to have a remedy before a tribunal for unfair dismissal. Employees participating in a lawful strike could not ipso facto be regarded as having committed a breach of an employment contract..."
"23. The Committee recommends that the right to strike be established in legislation, and that strike action does not entail any more the loss of employment, and it expresses the view that the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of Article 8 of the Covenant..."
The jurisprudence of the ICESCR thus recognises that trade union activities, including strike action, are aspects of the right to be a trade union member, and that the breach of contract rule is inconsistent with it.
UK law continues to lag far behind that of other European countries, international labour standards and the minimum level of respect that workers are entitled to expect. The 'right' to strike in law remains illusory: a 'right' whose existence is determined by the employer.
The law relating to industrial action in the UK is fragmented and complex and breaches international law in a number of respects. However it is difficult , because of its complex nature to suggest how the position should be reformed. As Deakin and Morris point out one issue which is often raised is whether withdrawing labour should be expressed as freedom or right. If we accept the view that it is necessary to define the scope of the capacity of workers lawfully to withdraw their labour, and the conditions under which this may be done, the existence of a positive right has numerous advantages. The most important of these is that it would give the withdrawal of labour a status among competing rights.
It seems that UK law has focused much more on protecting the organisers of industrial action from legal liability and less on the individual worker for whom there is no regime of statutory immunity. Therefore the freedom to take industrial action is undermined completely as the individual worker will jeopardise the continuation of his or her employment. Despite the introduction of protection for employees against dismissal for taking "protected industrial action" there are still a number of features of the present law that do not reflect international and European standards. The system of many other European countries incorporate a doctrine of suspension for the purposes of the employment law contract.
To summarise the current in the UK with regard to the right to strike it is best to look a rules surrounding unfair dismissal of a worker. Where the industrial action is official, the present position is that the dismissal will be automatically unfair if the reason for the dismissal is that the employee took "protected industrial action ", and one of the following three conditions is satisfied (i) the dismissal took place within eight weeks of the day on which the employee started to take protected industrial action; (ii) the dismissal took place after the end of that eight week period, but the employee has stopped taking protected industrial action before the end of that period or (iii) the dismissal took place after the end of the eight week period and the employee had not stopped taking part in the industrial action before the end of that period, but the employer had failed to take reasonable procedural steps to resolve the dispute. Industrial action is "protected" for those purposes If the employee is induced to take part in the industrial action "by an act which by virtue of section 219 is not actionable in tort "; in other words, the protection for the individual participants is contingent upon the union having complied with the complex legal requirements governing the organisation of industrial action; including the balloting requirements and the restrictions on certain forms of industrial action. As seen above, the unfair dismissal protection normally lasts for only eight weeks. However, a dismissal for taking protected industrial action will still be unfair where the industrial action has lasted for more than eight weeks, if he employer has failed to take "such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates. " In deciding whether the employer has taken reasonable procedural steps, the tribunal must have regard to whether the employer or the union had complied with the procedures laid down in an applicable collective agreement, and whether, afer the start of the protected industrial action, either party had offered or agreed to commence or resume negotiations, had unreasonably refused a request to use mediation services in relation to the procedures to be used to resolve the dispute.
So therefore the question must be asked what impact has international jurisprudenc and legislation had on UK law and the right to strike? Turning first to the right of workers contained within the social charter which is set out at Article 6 of the European Social Charter 1961 of the Council of Europe, which has been ratified by the UK. The UK has repeatedly been found to be in breach of Article 6 by the Council of Europe's Committee of Independent Experts. Yet this cannot give rise to any cause of action in UK or European courts, nor will it do so under the EU Charter. Nor could the EU legislature use the Charter as a justification for an EU law on strikes. Charter rights, for which provision is made in other parts of the Constitution, have to be exercised 'under the conditions and within the limits defined by those relevant parts. In the case of the right to strike or the right to impose lock-outs, these are expressly excluded from the EU's competence to legislate under the Social Policy 'chapter'
As discussed above in 1995 the Committee again repeated its negative conclusions in relation to dismissal of strikers and made a number of observations about other statutory restrictions on the right to strike. In 1996 the Governmental Committee too reiterated its negative conclusions and proposed a further "recommendation" which the Committee of Ministers duly adopted on January 15, 1997.
Thus the very basis for the most fundamental legal inhibition on the right to strike in the United Kingdom is challenged by the Charter's jurisprudence at the very highest level: breach, by the act of taking industrial action, of the contract of employment giving the employer the right to terminate it. Whilst restrictions on the right, inter alia, to collective action are permissible under Article 31 of the Charter they do not justify the universal unlawfulness consequent on the breach of contract rule.
The Human Rights Act 1998 does little to improve the position for employees in the UK as it does not furnish the worker with a general right to strike. This was the clear conclusion that was reached by the court in the Schmidt and Dahlstrom v Sweden. This case concerned collective bargaining practices in Sweden. In the event that national pay negotiations continued beyond the date on which the annual pay increase was due to take effect, the normal practice was to give retroactive effect to the pay increase when it was finally agreed. However , it was a principle of the system that the members of any union which chose to strike during the period would automatically forfeit the right to benefit from the retroactive effect.
The applicants claimed that the practice violated their rights under Article 11. However the court found against them. It reasoned that the right to strike was not inherent in the right to freedom of association, and accordingly the state was free to restrict the right to strike as it saw fit. Therefore it is difficult to see the impact that international legislation has had on this right, if any. The margin of appreciation given to member states is so wide that the Human Rights Act barely touches the area.
Finally The jurisprudence of the ILO is very clear on the existence of the right to strike and its violation by the common law breach of contract rules. The ILO is the principal international repository for international labour standards and that, together with the fact that its jurisprudence on the point is consistent with the European sources discussed, should lend it persuasive weight. Although again it is difficult to see the impact if any that this has had on the right to strike. Therefore to conclude whilst the introduction of the Employment Relations Act 2004 can be seen as a big step in the right direction whether or not it is enough to demonstrate that international standards have impacted on the UK right to strike is debatable. An improvement in the UK position and a reflection of international standard would be to introduce suspension rights in relation to the contract of employment as is inherent in many other European countries.
UK Case Law
- Bigham and Keogh v GKN Kwikform  ICR 113
- Bolton Railways Ltd v Edwards  IRLR 392 EAT
- Coates v Modern Methods and Materials Ltd  ICR 763
- Crofter Hand Woven Harris Tweed Co Ltd v Veitch  AC 435
- Derbyshire County Council v. Times Newspapers Ltd  1 Q.B. 777 (CA)
- Haddow v ILEA  ICR 202
- Highland Fabricators Ltd v McLaughlin  ICR 183
- Lewis and Britton v E Mason & Sons  IRLR 4 EAT
- Manifold Industries Ltd v Sims  ICR 504
- Marsden v Fairey Stainless Ltd  IRLR 103 EAT
- Middlebrook Mushrooms v. TGWU  1 C.R. 612
- Morgan v Fry  2 QB 710
- Naylor v Orton and Smith Ltd  ICR 665
- National Coal Board v Galley  1 WLR 16 CA
- Neil v Strathclyde Regional Council  IRLR 14
- Power Packing Casemakers Ltd v Faust  OCR 292
- R. v. Chief Met. Stipendiary Magistrate, ex p. Choudhury  1 Q.B. 429;
- R. v. Sec. of State for Home Office, ex p. Brind  1 A.C. 691
- Rantzen v. Mirror Group Newspapers  Q.B. 670
- Rogers v Chloride Systems Ltd  ICR 198 EAT
- Simmons v Hoover Ltd  ICR 61
- Thompson v Eaton Ltd  ICR 336
- Tracey v Crossville Wales Ltd  ICR 862
- Wilkins v Cantrell and Cochrane (GB) Ltd  IRLR 382
- Winnett v Seamarks Bros Ltd  ICR 1240
European Case Law
- Case C-6/96 Albany International BV v Stichting Bedrifspensioenfonds Texielindustrie Council Regulation 2979/98 Art
- Cheall v. U.K. (1985) 42 D.R. 178
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