Joint Committee On Human Rights - Twenty-First Report

Joint Committee On Human Rights Twenty-First Report

8 Workplace rights

129. Article 7 ICESCR guarantees the right to just and favourable conditions of work, and Article 7(a)(ii) in particular guarantees the right of workers to "a decent living for themselves and their families." Related to this is the Article 11 right to "an adequate standard of living for himself and his family, including adequate food, clothing and housing."

130. In its concluding observations, the CESCR welcomed the introduction of a national minimum wage[180] but expressed concern that the minimum wage was not set at a level to provide all workers with an adequate standard of living in accordance with Articles 7(a)(ii) and 11 of the Covenant; that it did not apply to under 18s, and that it discriminated against those between 18 and 22, by prescribing a lower minimum wage for this age group.[181] It urged the UK "to ensure that the level of the national minimum wage is determined with due regard to the requirements of an adequate standard of living". It recommended that minimum wage protection should be extended to workers under 18 years of age and that the scheme should be applied in a non-discriminatory manner to persons between 18 and 22 years of age".[182]

131. Some progress has been made towards compliance with these recommendations. From 1 October 2004, the adult rate for the minimum wage has been raised to £4.85 per hour, and the rate for those between 18 and 21 inclusive has been raised to £4.10. Following a recommendation from the Low Pay Commission, the government introduced a minimum wage rate for 16 and 17 year olds, of £3.00 per hour, from 1 October 2004.[183] The Low Pay Commission has recently begun a review of the operation of the minimum wage.[184] We welcome progress in raising the level of the minimum wage, and the introduction of a minimum wage for 16 and 17 year olds, but note the continuing inequality of protection for younger workers, identified by the CESCR as of concern under Article 7(a)(ii). We recommend that this should be taken into account in the Low Pay Commission's review of the national minimum wage.

The right to strike

132. The CESCR has repeatedly identified UK law as incompatible with the right to strike, as it is protected under Article 8 of the Covenant. Article 8 (1) (d) guarantees "the right to strike, provided that it is exercised in conformity with the laws of the particular country". This reflects similar guarantees of the right to strike, in the Conventions of the ILO,[185] and in the European Social Charter,[186] international instruments to which the UK is party.

133. Under the current law, employees have the freedom to engage in industrial action.[187] Engaging in strike action will, however, constitute a breach of the employment contract which may in certain circumstances result in dismissal. Trade unions which organise strikes may also incur liability in tort.

134. Where a strike is considered to be a lawful one, employees will be afforded some protection by the law of unfair dismissal, in that they cannot be dismissed for an eight week "protected period" following the commencement of strike action.[188] The Employment Relations Act results in some changes to this, though to an extent which is considered insufficient by some of those that submitted evidence to us.[189] It extends the 8 week period in cases where the employer has not taken reasonable steps to settle the dispute through involvement in mediation or conciliation procedures.[190] The Act also allows the protected period of eight weeks to be extended in the case of a lock-out.[191]

135. Trade unions enjoy immunity from tortious liability for organising strike action where action is taken in contemplation or furtherance of a trade dispute;[192] where it satisfies balloting and notice obligations,[193] and where it constitutes primary, rather than secondary strike action.[194] The law impacts restrictively on trade unions in a number of ways. First, the statutory immunity for tortious liability does not apply to all torts, only to those identified under the legislation.[195] Second, and perhaps the most significant restriction on immunity from tortious liability, "secondary" disputes (such as "sympathy strikes") do not fall within the immunity, as they are outside the definition of a "trade dispute".[196] One of the effects of this limitation is that there may be tortious liability for strike action taken against a parent company that is the de facto but not the immediate employer involved in the trade dispute.[197] In addition, where there is a transfer of a business, action concerning the future employer and future terms of employment will not be within the definition of a trade dispute. Third, written evidence also argues that balloting and notice requirements imposed on trade unions are unnecessarily onerous.[198]

136. In its concluding observations, the CESCR found, referring to its earlier concluding observations of 1997, that the failure to incorporate the right to strike in domestic law breached Article 8. Reiterating its 1997 recommendations on this point,[199] it recommended that the right to strike should be incorporated in legislation and that strike action should no longer entail the loss of employment.

137. These conclusions are echoed in successive findings of the ILO Committee of Experts, in its reviews of UK compliance with ILO Convention 87,[200] as well as in the findings of the Council of Europe European Committee of Social Rights.[201] The Institute of Employment Rights cited repeated findings by these bodies that the UK law fails to protect the right to strike.

138. The Institute of Employment Rights told us that—

If the United Kingdom is to meet minimum international standards, some radical surgery will be required to labour laws which remain the most restrictive in Europe, notwithstanding the Employment Relations Act 1999 and the enactment of the Employment Relations Bill currently before Parliament.[202]

139. The IER argued for protection of the right to strike, either by direct incorporation of one of the international treaties, such as the ICESCR, European Social Charter, or ILO Conventions, or by legislation broadly based on one of these instruments, and a number of related legislative measures including the widening of the definition of a trade dispute under the Trade Union and Labour Relations (Consolidation) Act 1992, and the abolition of the prohibition on secondary industrial action in support of other employees, and protection against dismissal of workers for taking part in a strike.

140. The Government maintained that the current law sufficiently protects the right to strike to comply with Article 8. It noted that "the law ensures that workers are free to withhold their labour if they wish"[203] and that trade unions are free to organise industrial action, within certain limitations.[204] It concluded that, taken together, this legal framework was sufficient to comply with the Covenant.[205] In particular, it disputed the CESCR's view that protection against loss of employment following strike action was necessary in order to protect the right to strike. It stated—

… giving protection against loss of employment is one means by which national legislatures can secure or at least assist in securing, compliance with the Covenant. But [the government] does not consider that the Covenant, which does not refer explicitly to the dismissal of strikers, makes such a protection essential in all circumstances or requires, where the protection is given, that it must be indefinite.[206]

141. Government evidence points out that there have been very few cases of dismissal following strike action, but acknowledges that this is a possibility. Evidence from trade unions suggests that the impact of the restrictions on industrial action is significant. It cites particular cases where the weak legal protection afforded to striking employees has had serious consequences for trade union members. The Communications Workers Union stated that it has on several occasions desisted, on legal advice, from taking industrial action in cases where it would otherwise have considered such action justified and proportionate, and that it has sometimes felt obliged to repudiate strike action by members so as to avert the risk of an injunction against them, thus leaving their members unsupported against dismissal.[207] UNISON cited cases where injunctions have been granted against it, restraining industrial action.[208]

142. The CESCR concludes that current law places undue restrictions on the right to strike, as protected in Article 8 ICESCR. We consider that the Government should take seriously the successive findings of the authoritative international bodies overseeing treaties to which the UK has become party, and should review the existing law in the light of them.

Collective bargaining

143. In its 1997 concluding observations on Article 8 (which were referred to and affirmed in the 2003 concluding observations)[209] the CESCR expressed concern that "the legally accepted practice of allowing employers to differentiate between union and non-union members by giving pay raises to employees who do not join a union is incompatible with Article 8 of the Covenant" and it recommended "that the right of employers to grant financial incentives to employees who do not join unions be abolished".[210] The law on this point is amended by the Employment Relations Act 2004, following the decision of the European Court of Human Rights, in the case of Wilson and Others v United Kingdom[211] which found the legislative provision for this practice also breached the right to freedom of association guaranteed by Article 11 ECHR.[212]

144. We welcomed the provisions of the Employment Relations Act 2004, which go a significant way to remedying the incompatibility with Article 11 ECHR and with Article 8 ICESCR, but we consider that the Act leaves some incompatibilities unremedied. In particular, in our thirteenth Report, we expressed concern that the failure to provide trade unions (rather than only employees) with an avenue for redress of their rights under Article 11 ECHR, where inducements were offered to employees not to join the trade union, could result in a violation of both the Article 11 right and the right to a remedy.[213] In our Thirteenth Report, we pointed out that provisions of the Employment Relations Act could lead to incompatibilities with ECHR rights. In our view the Act is also likely to leave incompatibilities with Article 8 ICESCR, as identified by the CESCR in its 1997 concluding observations.

180 Concluding Observations, para. 6 Back

181 ibid., para. 15 Back

182 ibid., para. 33 Back

183 www.dti.gov.uk/er/nmw/index.htm Back

184 LPC Press Notice, 2 August 2004 Back

185 Convention 87 ILO Convention on Freedom of Association (where the right to strike is an implied right in Article 3). Back

186 Article 6(4) European Social Charter guarantees the right to collective bargaining, including the right to take collective industrial action. Back

187 Trade Union and Labour Relations (Consolidation) Act 1992, s. 236 Back

188 Employment Relations Act 1999. Protection against dismissal is also deemed to be unfair where it takes place after the end of the eight week period but the employee concerned had ceased strike action before the end of that period; or where the employer had not taken reasonable steps to resolve the dispute. Back

189 Evidence of the Institute of Employment Rights (Appendix 14); Transport and General Workers Union (Appendix 20); National Union of Rail Maritime and Transport Workers (Appendix 18) Back

190 Section 28 Back

191 Section 26 Back