Joint Committee On Human Rights

Joint Committee On Human Rights Tenth Report

Bills drawn to the special attention of each House

Government Bills

1 Employment Relations Bill

Date introduced to the House of Commons
Current Bill Number
Previous Reports
2 December 2003
House of Commons 61
4^th and 8^th

1.1 In our Fourth Report,[1] we reported our view that clauses 23 to 26 of the Employment Relations Bill would remove the incompatibility between the United Kingdom's employment legislation and the rights of employees and trade unions under ECHR Article 11 (right to freedom of association) which had been established by the European Court of Human Rights in Wilson and the National Union of Journalists, Palmer, Wyeth and the National Union of Rail, Maritime & Transport Workers, Doolan and others v. United Kingdom.[2] The incompatibility arose because current legislation allows an employer to offer inducements to employees to give up their right to be members of trade unions. This was held to violate the rights of both the individuals to whom inducements were offered and the unions concerned. In our Eighth Report, we drew attention to a possibility that certain Government amendments to the Bill could give rise to a threat of a violation of Articles 10 and 11 of the ECHR.[3] We also published a letter from Professor the Lord Wedderburn of Charlton QC to our Chair expressing his disagreement with our view that the Bill as originally introduced would be effective in entirely remedying the incompatibility established in the Wilson case.[4]

1.2 Our Chair subsequently received a letter dated 8 March 2004 from Mr John Hendy QC, who had appeared as leading counsel for the applicants in the Wilson case.[5] Mr Hendy argues that clause 24 of the Bill fails to secure the rights of trade unions under ECHR Article 11 which the European Court of Human Rights held had been violated by the current United Kingdom legislation. Among other things, clause 24 would insert new sections 145A and 145B in the Trade Union and Labour Relations (Consolidation) Act 1992. Proposed new section 145A would give an employee the right not to be offered an inducement by the employer if the sole or main purpose is to induce the employee to forego rights to belong to a trade union, to be represented by the union, or to participate in the activities of the union. Proposed new section 145B would give an employee who is a member of a trade union recognised by the employer the right not to be offered an inducement to forego collective bargaining by the union on his or her behalf. In particular, Mr Hendy argues that:

a) the Bill would not permit a trade union (as distinct from individuals) to enforce the right of individuals to be free of inducements not to join the union: proposed new sections 145A and 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 would allow only individuals, not unions, to bring proceedings in an employment tribunal against employers who offer inducements not to belong to a trade union;

b) under proposed new section 145A, individuals would have a remedy only if the employer's sole or main purpose in offering an inducement could be shown to be impermissible, whereas the European Court of Human Rights had made it clear that an employer's purpose should be irrelevant;

c) protection under proposed new section 145A would be extended only to people who receive an offer of an inducement, so an employer could avoid liability either by making an offer only to people who are known to be certain to accept it or by making it known that the employer is willing to receive offers from employees to give up their rights in exchange for a specified benefit, leaving it to the employer merely to accept or reject that offer; and

d) protection under proposed new section 145B would be available only to members of trade unions which are recognised by the employer, and could be avoided if the employer were to de-recognise the union before making an offer of an incentive not to belong to the union.

1.3 We have taken further advice on and given further consideration to the provisions of clause 24 of the Bill in the light of the letters from Mr Hendy QC and Professor the Lord Wedderburn. We have reached the following conclusions in respect of the arguments outlined in the previous paragraph.

Remedies for trade unions

1.4 We accept that the Bill would not enable a trade union to bring proceedings to obtain a remedy for action taken by an employer to offer inducements to employees not to join a trade union or not to take part in trade union activities. If the employer is a public authority within the meaning of section 6 of the Human Rights Act 1998,[6] it would of course be open to the union to bring proceedings under section 7 of that Act to obtain redress for a violation of a Convention right if the public authority had acted incompatibly with the union's rights under ECHR Article 11 as interpreted by the European Court of Human Rights in the Wilson case. However, if the employer is not a public authority the union would be without a domestic remedy for the violation of its rights under ECHR Article 11. The union would have to seek redress from the European Court of Human Rights, and would be likely to be held to be a victim of violations of both ECHR Article 11 (right to freedom of association) and Article 13 (right to an effective remedy from a national authority for violations of Convention rights). To this extent, we agree that (contrary to our original view) there is a lacuna in the Bill which could well prevent it from achieving its objective of rectifying part of the incompatibility established by the European Court of Human Rights in the Wilson case so far as it related to the rights of trade unions rather than the rights of individuals.

The employer's purpose

1.5 We do not agree that the judgment of the European Court of Human Rights in Wilson makes it clear that the limitation of protection to cases where the employer has an impermissible purpose is incompatible with ECHR Article 11. The relevant paragraphs of the judgment, with particularly relevant passages italicised, read as follows:

32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108):

" ... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269)."

33. In its next report the Committee again insisted "that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia]", commenting (Conclusions XIV-I, 1998, pp. 798 and 800):

"The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ... "

…

46. The Court agrees with the Government that the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.

47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords' judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.

48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by the Social Charter's Committee of Independent Experts … (see paragraphs 32-33 … above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.

1.6 It seems to us that these quotations from the judgment of the European Court of Human Rights make it clear that the purpose of the employer is relevant to the acceptability under Article 11 of arrangements to offer more favourable terms to some employees than to others. Indeed, in our view the word 'induce' indicates that the person offering the inducement has a particular purpose in view. It may be that limiting a remedy to circumstances in which the employer's 'sole or main' purpose is to offer an inducement to an employee not to exercise his or her rights leaves a lacuna where that is a purpose, but only a subsidiary one. To that extent, it would in our view offer a more secure protection for rights under Article 11 if the words 'sole or main' were omitted from proposed new sections 145A and 145B, and we recommend that the Bill should be amended to replace "the sole or main purpose" with "a purpose".

Inducements provided to willing employees but not to others