Memorandum by the Chartered Institute
of Personnel and Development (CIPD)
1. With 130,000 members, CIPD is the largest
body in Europe responsible for the management and development
of people. This note is submitted on behalf of the Institute and
focuses on the impact of the EU reform treaty insofar as it gives
the same rights, freedoms and principles of the EU Charter of
Fundamental Rights the same legal value as the Treaty. In particular,
we are concerned about the possible impact of incorporating into
UK law a "right to strike".
2. Individual workers in the UK have never
had the "right to strike". By extending the application
of the EU Charter of Fundamental Rights, Article 28 of which gives
workers the right to take collective action "including strike
action", the treaty would overturn a long established principle
underlying UK employment law.
3. We recognise that article 1 of the Protocol
annexed to the Treaty states that the Solidarity provisions of
the Charter do not extend the ability of the ECJ or UK courts
to find that UK laws or practices are inconsistent with the rights
contained in the Charter, nor do they create justiciable rights
unless such rights are provided for in UK legislation. The weight
to be attached to the protections for the UK embodied in the Protocol
must be judged in the light of the longer-term possibility that
they might be "traded" in return for concessions in
other areas.
Article 27: employee information and consultation
4. Since 1999 the UK has adopted legislation
that brings it more closely into line with the employment provisions,
taken as a whole, in chapter IV of the EU Charter. For example
the Information and Consultation of Employees Regulations 2004,
under which employees can seek the support of the Central Arbitration
Committee (CAC) in reaching agreement with their employer on arrangements
for information and consultation, should clearly satisfy the requirements
of Article 27.
Article 28: collective bargaining and industrial
action
5 Article 28 of the EU Charter of Fundamental
Rights however contains a Right of collective bargaining and action
in the following terms:
"Workers and employers, or their respective
organisations, have, in accordance with Community law and national
laws and practices, the right to negotiate and conclude collective
agreements at the appropriate levels and, in cases of conflicts
of interest, to take collective action to defend their interests,
including strike action."
6. The statutory procedures for recognition
of trade unions introduced by the Employment Relations Act 1999
mean that unions have the "right to negotiate and conclude
collective agreements". Under the Act, if a trade union invokes
the statutory recognition procedures, the Central Arbitration
Committee can require the employer to recognise a union that gets
the necessary level of support from employees. Under the statutory
procedures, an employer can be required to negotiate on pay and
other conditions of employment. So there is clearly in existing
UK law the right for trade unions "to negotiate and conclude
collective agreements at the appropriate levels" on behalf
of their members.
No individual right to strike
7. Trade unions can also call on their members
to take industrial action, without exposing themselves to legal
challenge, provided they comply with a number of conditions, including
the rules governing the conduct of a ballot.
8. However employees who take part in industrial
action will generally be in breach of their employment contract.
As the most basic 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 as constituting a fundamental breach of
contract, and the employer will have the right to dismiss summarily.
The employer would also probably be entitled to sue the employee
for damages: the fact that employers rarely pursue strikers in
the courts does not affect the fact that such action is unlawful.
Industrial action and unfair dismissal
9. Under the Employment Relations Act 1999,
dismissing a striker is automatically unfair where the striker
is dismissed for taking "protected industrial action".
However an employment tribunal will normally have no jurisdiction
to hear a complaint of unfair dismissal by a striking employee
unless the strike is official (ie authorised or endorsed by the
union), and has lasted for no more than eight weeks.
10. Taking part in a strike or other industrial
action may also affect an employee's other statutory rights, including
redundancy or statutory sick pay.
Conclusion
11. The authors of a leading text on employment
law (Smith and Wood's Industrial Law, 7th Edition) have
commented that, although the unfair dismissal provisions of the
1999 Act, discussed above, are "undoubtedly the closest that
UK law has ever come" to creating a right to strike, they
"cannot be said to guarantee a "right to strike"
as such (on account of the qualified nature of the protection
against dismissal, and the absence of any protection against victimisation
short of dismissal)".
12. To incorporate a right to strike in
UK law would disturb the existing balance of the law as between
employers and employees on collective issues. It would also risk
encouraging a return to industrial action as a means of resolving
such issues. In recent years the UK has benefited from historically
low levels of days lost due to industrial action. The CIPD would
be strongly opposed to any change in the law that might seem to
reinstate industrial action as a useful method of resolving workplace
issues, which would turn back the clock on many years of progress
towards a more consensual style of employee relations. This would
put at risk the labour market flexibility on which the UK's competitiveness,
ability to attract overseas investment, employment and growth
depend. We are unable to judge how effective the protections incorporated
in the Protocol may turn out to be in the longer term.
10 December 2007
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