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The thorny issue of union rights raises its head

Janet Gaymer explains why any employment law review may need to consider a recent ruling on union recognition

A judgement, delivered in the European Court of Human Rights on 2 July, has already triggered a debate about whether the current rights of trade unionists in the UK are sufficient to comply with those under European law. It is a decision that may have to be taken into consideration in the Governments recently announced review of employment law.

The judgement in question involved three cases: Wilson and the NUJ vs the UK; Palmer, Wyeth and the RMT vs the UK; Doolan and others vs the UK and the European Court of Human Rights. The issue was whether the law of the UK, by allowing employers to de-recognise trade unions, failed to ensure the right to freedom of expression and trade union membership contrary to Articles 10 and 11 of the European Convention on Human Rights. An additional complaint claimed that UK law permitted discrimination by employers against trade union members.

As UK law stood at the time the cases faced the UK courts, employers had no legal obligation to recognise trade unions for the purposes of collective bargaining. There was therefore no legal remedy to prevent employers from de-recognising trade unions and refusing to renew collective bargaining agreements.

In two of the cases, employees had been required to sign a personal contract and give up union rights or accept a lower pay rise. The cases eventually reached the House of Lords in 1995 which decided that this constituted no breach of the law, since the employers conduct had not been motivated by an intent to prevent, deter or penalise union membership. Even so, it was clear that the employers were seeking, by means of an attractive offer, to induce employees voluntarily to quit the unions collective bargaining umbrella. Employees would then be forced to deal directly with the employers over terms and conditions of employment.

The European Court took the view that by permitting employers to use financial incentives to induce employees to surrender important union rights, the UK Government had failed in its obligation under the Convention on Human Rights to ensure the right to form and to join trade unions for the protection of individual interests.

Each individual was awarded 7,730 euros (about 4,900) in non-pecuniary damages for stress and pain, and the trade union applicants were awarded 122,250 euros (just over 77,100) in costs. The monetary awards though are relatively unimportant in comparison with the spotlight that the judgement throws on the whole question of trade union rights.

John Monks, general secretary of the TUC, called on the Government to change the law so that workers could have their voice heard through their union without suffering worse working conditions as a result. The CBI, however, noted that many employers and employees wanted to retain the right to negotiate directly over pay and conditions.

In any event, UK law had moved on since the circumstances described in the case. The 1999 Employment Relations Act includes a number of provisions which protect collective bargaining rights. A deal had been done with the trade unions and the CBI saw no reason to unpick it.

So, does this judgement herald a new era of employer/trade union friction? Some will argue that the European Court decision dealt with past history and that life and law has now moved on. However, the sentiments uttered by the European Court of Human Rights about the need to ensure that a trade union is free to strive for the protection of its members interests will form an interesting backdrop against which to consider any legislative reform including the recently announced review of the Employment Relations Act 1999.

While the Court did not go so far as imposing on an employer an obligation to recognise a trade union, it did emphasise that the trade union and its members had to be free in one way or another to seek to persuade the employer to listen to what it had to say on behalf of its members. The question for the reformers will be whether current legislation supports this freedom to a sufficient extent, or whether yet more legislation is needed.


Janet Gaymer is senior partner at Simmons & Simmons