18. Memorandum from the National Union
of Rail Maritime and Transport Workers
I would like to commend to your Committee the
Submission on the International Covenant on Economic Social and
Cultural Rights made by the Institute of Employment Rights on
31 March 2004, which was written by Professor Ewing and John Hendy
QC.
This union has suffered and been thwarted in
its representation of its members by the denial of the right to
strike in the UK which, as the Institute submission points out,
is contrary to the International Covenant on Economic, Social
and Cultural Rights, the European Social Charter and the International
Labour Organisation Conventions. On many occasions we have wished
to support members in dispute with their employers but have been
advised by our lawyers that, notwithstanding the moral legitimacy
of the members' case, the unjust laws on industrial action would
put the union into risk of legal proceedings, injunctions and
the rest. In 2002, for example, we were the subject of an injunction
upheld by the Court of Appeal because members could not be balloted
because they had failed to tell the union they had changed jobs.
I attach a copy of the law report NURMT v Midland Mainline
(not printed here).
The hideous complexity of the law on the definition
of a trade dispute, the difficulties involved in the conduct of
industrial action ballots, the rigours of the obligations to serve
notices and the ease with which injunctions are granted against
unions are well known. The Institute report makes clear how each
of these features of UK law are in breach of our international
legal obligations.
I would like to draw particular attention though,
to the fact that whilst the protection of the right of trade unions
to call and support industrial action is very limited, for workers
it is practically non-existent.
The problem arises from the fact that in UK
law all forms of industrial action constitute a breach of an individual
worker's contract of employment allowing the employer to dismiss
them. As the government stated in its 1998 Report to the International
Labour Organisation ("UK Government's Reply to the Committee
of Experts' 1996 Observation", para 6):
"Under UK Law, individuals are almost
invariably breaking their contracts under which they work when
they take any form of industrial action, irrespective of whether
the action is official or unofficial, or whether the action is
lawfully or unlawfully organised. They can therefore be sued on
an individual basis by employers for damages."
This lamentable state of affairs is precisely
the consequence of the absence of the right to strike in the UK.
A strike (or industrial action less than a full stoppage of work)
will be in breach of the contract of employment for two reasons.
Firstly, the striker is failing to perform the
contractual obligations to work and to obey lawful instructions.
Secondly, by seeking to cause disruption to the employer's business,
the striker is breaching the "implied term to serve the employer
faithfully within the requirements of the contract") (Ralph
Gibson LJ giving the judgement of the Court of Appeal in British
Telecommunications PLC v Ticehurst" [1992] ICR 383 at
398D-399D). It is to be particularly noted that the taking of
strike action is a breach of the employee's contract of employment,
even where all the onerous obligations imposed on trade unions
by Part V of the Trade Union and Labour Relations (Consolidation)
Act 1992 have been fulfilled.
Not only is a strike in breach of the worker's
contract of employment. Because of the inevitable breach of the
duty of faithful service, virtually all other forms of industrial
action will breach the contract of employment including working
strictly according to contract (Secretary of State v ASLEF
(No 2) [1972] ICR 19, esp Buckley LJ at 62B-G, and see Denning
MR at 54F-56E), or refusing to carry out some aspects only of
contractual duties (Ticehurst above). The only exceptions
might be where industrial action followed notice to terminate
the contract of employment (Boxfoldia v NGA [1988] ICR
752), or where the strike consisted in not renewing contracts
of employment (Allen v Flood [1898] AC 1), or where there
was no obligation to work (Burgess v Stevedoring Services Ltd
[2002] IRLR 210).
The consequence of a strike being in breach
of contract is severe for the worker in the UK. "Any form
of industrial action by a worker is a breach of contract which
entitles the employer at common law to dismiss the worker . .
." (Lord Templeman in Miles v Wakefield MDC [1987]
ICR 368 at 389) or to refuse to pay wages (Wiluszynski v Tower
Hamlets LBC [1989] IRLR 259) or to sue for damages (NCB
v Galley [1958] 1 WLR 16). The employer's power to impose
these penalties is not diminished to any extent whatever by the
fulfilment by the trade union of its statutory obligations under
Part V of the Act.
The only protection for workers is a very limited
right to claim reinstatement and/or compensation for unfair dismissal
under Part X of the Employment Rights Act 1996. That right is
denied to any worker dismissed whilst participating in a strike
which is not "official", ie supported by his
or her union (s 237 of the Trade Union and Labour Relations (Consolidation)
Act 1992). Where the calling of the strike is denied protection
by reason of a failure to comply with s 219 (including ss 226-234A
which require the pre-strike ballot ) of the 1992 Act, the consequences
of the union making the strike official would be unlawful and
restrainable by injunction and render the union liable in damages
if sued. Consequently, the union will not make such a strike official
or, if the strike commences, the union will be obliged to repudiate
it in writing through the extremely onerous machinery of ss 20-21
of the 1992 Act. Any person thereafter striking in pursuit of
the dispute would therefore be denied the right to complain of
unfair dismissal if dismissed.
S 16 and Schedule 5 of the Employment Relations
Act 1999 inserted s 238A into the 1992 Act. This allows strikers
to claim unfair dismissal only if they are engaged in industrial
action which is protected by s 219 of the Act. If the strike turns
out not to be protected by s 219, then strikers who are dismissed
have no right to claim unfair dismissal, let alone succeed in
such a claim. For those to whom it does apply, the section makes
a finding of unfair dismissal automatic (s 238A (2)) but does
not guarantee reinstatement. Reinstatement is a discretionary
remedy granted in only 0.5% of successful unfair dismissal cases.
Even where reinstatement is ordered, the employer is entitled
to disregard it though it will have to pay extra compensation.
A reinstatement is not mandatory and enforced by contempt of court
procedures as are injunctions such as that granted against this
union in Midland Mainline. Furthermore the unfair dismissal
protection only lasts for eight weeks (subject to extension if
the employer is unreasonable and, if the Employment Relations
Bill becomes law, where there is a lockout). The total inadequacy
of the eight week rule was demonstrated in the Friction Dynamics
case recently.
UK law requires protection of the individual
worker's right to strike as the International Committee on Economic,
Social and Cultural Rights made clear in their Reports on the
UK in 1997 and 2002, referred to in the Submission of the Institute
of Employment Rights. It is hoped that your Committee will endorse
this view and ensure that such a law is introduced.
28 April 2004
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