1 Employment Relations Bill
Letter from John Hendy QC to the Chair
I have just seen a copy of the Fourth Report of the
Joint Committee which deals with the Employment Bill introduced
in the House of Commons on 2nd December and which has just passed
the Committee stage. That Report states, in relation to the case
of Wilson and others v UK that "the Strasbourg Court
concluded that national law does not adequately protect trade
unionists' fights against attempts by employers to frustrate unions'
attempts to protect their members' interests, and that this violates
the Article 11 fights of both the unions and their individual
members."
This is an accurate summary of the case in which
I appeared as leading counsel for the applicants which, of course,
included the RMT and NUJ unions. It reflects paragraph 48 of the
judgment which reads as follows:
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 Social Charter's
Committee of Independent Experts and the ILO's Committee on Freedom
of Association (see paragraphs 32-33 and 37 above). It considers
that, by permitting employers to use financial incentives to induce
employees to surrender important union rights, the respondent
State failed in its positive obligation to secure the enjoyment
oft he rights under Article 11 of the Convention. This failure
amounted to a violation of Article 11, as regards both the applicant
unions and the individual applicants.
The union applicants would have been entitled to
damages but for their failure to prove loss (see paragraphs 62-64).
However, the Employment Bill provides no provision
which would allow a union to enforce the fight guaranteed by Art.
11: only individual complainants under clause 24 (proposed new
ss.145A(5) and 145B(5)) may take a case to a tribunal. Accordingly
it is plain that the UK will remain in breach of its obligations
under the European Convention.
In my view there are other reasons why the Bill fails
to remove the incompatibility with the Convention fights articulated
in the Wilson case.
Firstly, the Bill provides a remedy under the proposed
new s. 145A only where it can be established that an impermissible
"sole or main" purpose is established. Yet the judgment
makes clear that the limitation of the protection of s.146 to
situations where the employer had an impermissible purpose was
incompatible with Art. 11 (paras. 47 and 48 of the judgment).
It therefore follows that the restriction in the extended protection
of s.145A to proof of purpose—even sole or main purpose—is
not compatible. Since the proposed extension of the law will not
protect against situations where the effect of the offer will
be that the worker does not exercise the union fights identified
in s. 145A(1), then the law will remain inconsistent with Art.
11. The proposed section therefore does not fill the breadth of
the gap identified by the European Court of Human Rights in the
protection which Art. 11 guarantees.
Secondly, likewise under the proposed s.145A, the
Bill will extend protection only to those who are offered a financial
inducement and not to those who are not recipients of such an
offer. If, therefore, the employer accurately selects amongst
the union members in his employ those who will succumb to the
offer and he makes no offer of inducement to those who would refuse
it, then under this section, there will remain no remedy for those
subject to precisely the discrimination which the European Court
of Human Rights held was incompatible with Article 11.
Thirdly, if the employer wishes to avoid the risk
of inaccurately predicted those to whom he will make the s.145A
offer who might refuse and challenge his action, he can avoid
the problem altogether by inviting those prepared to surrender
union fights to make him an offer which he may or may not accept.
So long as the employer avoids making an offer or counter-offer,
he is at no risk from s.145A. The concept of an "offer"
(and an "acceptance") is a fundamental in English contract
law and one not open to any purposive interpretation which would
extent the fight proposed in the Bill. By the adoption of this
simple technique the denial of fights identified in Wilson
may continue unimpeded by s.145A.
Fourthly in relation to s.145B the fights proposed
in it are dependent on the trade union having been recognised
(s.145B(1)). Consequently, if the union is not recognised the
section will do nothing to extend the protection which the European
Court of Human Rights concluded was necessary for UK law to comply
with Art. 11. More pertinently, if the employer derecognises the
union prior to making the offers described in the section, which
was precisely the situation in Wilson, then the employer
is unrestrained by the section from making the offers.
In all these respects it appears to me that the conclusion
of your Committee that the Bill achieves the objective of removing
the incompatibility with Article 11 rights is, respectfully, wrong.
I am not clear what may be done now that the Report
has been published and whether the Committee ever reviews its
conclusions but perhaps you would draw to the attention of the
relevant minister that the Bill does not remove the incompatibility
with Article 11 and will require to be re-drafted if it is to
do so. If this is not done, plainly the UK remains at risk of
a further adverse judgment on the same point as in Wilson.
8 March 2004
