Our thoughts on the world of employment law - and beyond.

Secondary action - the ban survives

Employers who need to think about these things have long been concerned that a UK government might feel compelled to permit at least some forms of secondary industrial action, which were banned by the Employment Act 1990.  The Committee of Experts to the ILO expressed the view nearly twenty years ago that a general prohibition on sympathy strikes could lead to abuse, and a head of steam has been generated on this issue by a number of trade unionists, academics and practising lawyers. 

The European Court of Human Rights (“the Court”) has now given its judgment in the case of RMT -v- UK.  That arose out of a pay dispute between the union and EDF in 2009.  There were two issues: (i) the complexity of the pre-strike notice provisions and (ii) the prohibition of secondary action in TULR(C)A 1992, both of which RMT said were excessive restrictions on the right of freedom of association under Article 11 of the European Convention on Human Rights. 

As to (i), although an injunction had been obtained against the RMT which delayed industrial action, the RMT had in fact been able to extract an improved pay offer from EDF.  The Court therefore found RMT’s claim inadmissible.  The successful outcome for RMT in the dispute could not be disregarded.  While the UK procedural requirements had been subject to some criticism internationally, they had not impeded successful collective action by RMT for its members in this case. 

On the secondary action point, the UK Government said that the right to strike was adequately protected.  Article 11 did not confer any right to take secondary action.  Sympathy strikes lacked the necessary connection between collective action and the direct interests of those taking part in it.  RMT argued that the Court, having identified collective bargaining as an essential element of trade union rights, must accept that the taking of strike action (including secondary action) was an essential element of freedom of association. 

The Court held unanimously there was no breach of Article 11 by the ban on secondary action.  The majority held that the ban was an interference with the rights of RMT, but that the interference was justified.  There were sufficient reasons to say that, in the UK context anyway, the ban was proportionate and fell within the state’s margin of appreciation. 

Three judges pointed out in a separate opinion that states have a wide margin of appreciation for decisions in cases touching upon economic and social policies.  A fourth judge took an altogether stronger view saying that, in effect, there had been an element of mission creep in the interpretation of the Convention, which was intended to set minimum standards.  It should not be expanded in scope via judicial interpretation simply because some other international treaties went further than the express terms of Article 11. 

Those employers who are sometimes troubled by industrial action (and worry about the possible impact on suppliers and customers) will doubtless see this decision as a good thing.  In the 1980s, to deal with the law as it then stood, some groups of companies adopted contractual purchasing and distribution structures which made lawful secondary action at direct suppliers to, or customers of, the employer in dispute difficult or impossible to achieve.  Others thought about doing that.  If such arrangements are still in place, and make sense currently for the employer, there is no reason to upset them.  But it appears that the likelihood of legislation permitting some forms of secondary action (perhaps going back to the rules of the 1980s) may have receded – at least for the moment. 

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