ECHR JUDGMENT IN ASLEF v UK CASE – IMPLICATIONS FOR TRADE UNION LAW
Response by Thompsons Solicitors – August 2007
Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has a network of offices, operating in England, Northern Ireland, Wales and Scotland. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.
Thompsons has a particular interest in the case of ASLEF v UK, having been instructed by ASLEF to pursue the case to a successful outcome. Thompsons welcomes the opportunity to comment on the Dti’s proposal to amend the law in consequence of the decision of the European Court of Human Rights (ECHR).
Thompsons is concerned about the extremely limited scope of the Dti consultation. The firm is also concerned about the lack of recognition of the general common law principles and statutes which apply to trade unions.
While the Government needs to look in particular at section 174 - this the section of the law about which the ECHR made adverse comments – there is a need to see the regulation of trade unions in the general common law and legislative context. British trade unions are over regulated in ways that offend international standards.
Trade unions are organisations with constitutions and rules. They admit members in accordance with those rules. Some trade unions have wide membership across many different occupations and industries in both the private and public sector. Other trade unions operate only in the public sector while some, like ASLEF, limit their membership one or more particular grades or categories of worker or skills.
When a member joins a trade union they agree to abide by the rules of the union, rules that are themselves approved by the union’s membership through its democratic structure. The union undertakes to provide certain levels of services primarily of a collective bargaining or representational nature but also those such as financial, legal and insurance services. The rule book sets out the contract between the trade union and its members. If a member is dissatisfied with their trade union or alleges it has not abided by the contract contained in the union’s rules, breach of contract actions are possible.
If a dispute arises about discipline of a member, that member has the right to complain through the civil courts or the Certification Office. Section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out the Certification Officer’s general jurisdiction for breaches of rules, including disciplinary rules.
The Certification Officer also has a role in regulating trade unions, including requiring that they are properly established. Unions must make annual returns to the Certification Officer, providing a range of financial and other information.
Other statutes and laws also apply to trade unions. Trade Unions are subject to controls parallel to those governing employers and are prohibited from discriminating against members on the grounds of:
• race: section 11 of the Race Relations Act 1976 applies;
• sex: section 12 of the Sex Discrimination Act 1975 applies;
• disability: section 13 of the Disability Discrimination Act 1995 applies;
• religion and belief: regulation 15 of the Employment Equality (Religion or Belief) Regulations 2003 applies;
• sexual orientation: regulation 15 of the Employment Equality (Sexual Orientation) Regulations 2003 applies;
• age: regulation 18 of the Employment Equality (Age) Regulations 2006.
There is no prohibition in law generally about political belief, save in Northern Ireland under Fair Employment legislation.
The above shows that trade unions are fully regulated under both common law and statute. In any event, following the ECHR decision, there is no continuing purpose for section 174.
Context in which section 174 was originally enacted
It is important to consider the context in which section 174 was originally enacted and the political reasons for it. The provisions now contained in the 1992 Act were enacted by a Conservative government hostile to trade unions, which sought to break trade union influence and in particular eradicate the closed shop.
Section 174 was a legislative attempt by the then government to prevent trade unions excluding or expelling members on the basis of their political belief. The provisions were aimed at protecting mainstream political parties, not the far right parties that now seek to exploit the legislation. Compensation was accordingly set at a very high level, not only to show the then government’s disapproval of politically-based exclusion but also to reflect the fact that a worker in a closed shop industry excluded from their union could also lose their job.
These circumstances no longer apply. Indeed as the ECHR commented in ASLEF v UK, Mr Lee, the member expelled by the union, never claimed he had suffered any detriment as the result of his exclusion. There was no apparent prejudice suffered by Mr Lee in terms of his livelihood or in his conditions of employment. In fact Mr Lee enjoys the benefit of ASLEF’s negotiations with his employer without having to pay any subscription to the Union.
There is a different political landscape in 2007. Section 174 no longer has any purpose and it should be repealed in total. Improper exclusion or expulsion, as explained above, is dealt with by discrimination law. Merely tinkering with the wording would be a missed opportunity to introduce clarity to the law in this area.
The Government’s approach – section 174
The consultation paper (paragraph 4.2/.3) asserts that the ECHR judgment was “rooted in the circumstances of this particular case” and that since the “Court did not give any opinion as regards other limitations under UK law on the ability of trade unions to expel, exclude or otherwise discipline their members… only those aspects of section 174 of the 1992 Act which refer to political party membership and activities need to be changed to ensure complete compliance with Article 1.1”.
Thompsons take issue with this highly selective interpretation of the ECHR judgment. Contrary to the Government’s assertion, the judgment requires any restraint on the freedom of a trade union in this respect to be justified as prescribed by law and necessary in a democratic society. The facts in the case were inevitably particular but the Court’s reasoning (as set out in paragraphs 42-46) has implications for the whole of section 174. For example, paragraph 43 gives three examples of abuse of a union’s dominant position in excluding or expelling a member – breach of rule, wholly unreasonably or arbitrary rules or where the consequences resulted in exceptional hardship. It is immediately obvious that section 174 goes way beyond the kinds of abuse envisaged by the court.
More importantly, section 174 does not start from the position embedded in Article 11 i.e. unions’ freedom to associate subject to limitations. On the contrary, it assumes that a union is not free to associate and then qualifies that by listing permitted grounds for exclusion or expulsion.
Furthermore, the consultation paper fails to acknowledge that paragraph 50 of the decision, containing the key reasoning of the Court, contained twin grounds for its decision viz.
• expulsion did not impinge in any significant way on Mr. Lee’s freedom of expression or his lawful political activities. Nor did he suffer a significant detriment (there being no closed shop);
• particular weight should be given to ASLEF’s right to choose its members in accordance with its political aims and values. In this respect, the Court recognised that unions were often ideological bodies with strongly held views on social and political issues.
It follows that the Court’s ruling was incompatible with the structure of s.174. Given that the closed shop is unlawful; that both the Certification Office and the courts have jurisdiction for a union’s breaches of its own rules; and given the wide range of the law on discrimination, it falls to the Government to just any of the provisions of s174.
The consultation paper makes no such effort. There is no need for the level of regulation contained in s.174. There is no evidence advanced in the consultation paper or in the government’s submissions in ASLEF v UK (or indeed in Thompsons’ experience) that trade union members rely on s174 in preference to discrimination law.
In summary, s174 in any redrafted version is unnecessary over-regulation and the Government has not justified its retention in any form.
In any event, Thompsons has considerable reservations as to whether either of the two options proposed in the consultation document will assist in clarifying the law following the decision in ASLEF v UK and whether they are in accordance with the spirit or letter of that decision.
Amend s174 to exclude any reference to a special category of conduct relating to political party membership and activities.
The consultation document suggests that this option would position political party membership and activities as a type of “conduct” (permitted grounds for exclusion and expulsion), significantly simplify wording of s174 and “provide trade unions with much greater autonomy in deciding their membership”.
The Dti says that there would be no safeguards against possible abuse but concedes that these may not be necessary as there is no evidence that trade unions would make use of greater freedom by expelling members of mainstream political parties. Whilst the consultation paper accepts that an aggrieved member could seek legal redress for an expulsion in breach of rule by bringing a breach of rule claim before the courts, it does not refer to the Certification Officer’s s.108A jurisdiction in breaches of unions’ disciplinary rules – an easily accessible and very effective remedy.
S174 is convoluted and confusing. The 2004 amendments only added to that confusion. Trade unions have always focussed on recruiting and organising membership in workplaces. Exclusion and expulsion are extremely rare occurrences. Trade unions tend to use lesser sanctions for breaches of rules and expulsion is only resorted to in the most extreme of breaches. Indeed, the BNP’s own publicity material, from 2003, asserts that the only expulsions have been of BNP members.
Retain special category of conduct relating to political party membership and activities but significantly amend the rights not to be excluded or expelled for such conduct.
This option would specify particular safeguards against abuse by specifying that the union’s decision would be unlawful unless:
(a) the political party membership or activity concerned was incompatible with a rule or objective of the union, and
(b) the decision to expel was taken in accordance with union rules or established procedure.
Option B is unworkable and unnecessary. It may be based on the reasoning of the Court which noted the need for the trade union to avoid arbitrary behaviour and to act in accordance with its rules. But as the consultation paper points out many union rule books already refer to racist, xenophobic or extremist political behaviour as unacceptable. Therefore little adaptation would be required.
The Dti itself recognises that Option B might create grey areas and give scope for legal action over the precise meaning of a union’s rules or objectives.
As already explained, the breach of rule jurisdiction of Certification Officer (s108A) already provides a remedy for expulsion in breach of union rules. There is therefore no need for a separate right to complain to an Employment Tribunal and obtain declaration.
While the Certification Officer cannot order compensation he can order a trade union to take such steps to remedy a breach in a practical way for the aggrieved member. We refer again to the absence of any detriment shown by Mr Lee. He suffered no losses so there can be no possible need for compensation.
Unjustifiable discipline – section 64
The Government should take this opportunity to repeal section 64 of the 1992 Act. This confers on union members a right not to be “unjustifiably disciplined”, defined in s65 as discipline where any one of the reasons fell within a long list of conduct by the member that the section protects e.g.
• failing to obey a call to take part in industrial action.
• being or not being a member of another union
• working with non-members or for an employer.
This section infringes trade union rights to autonomy and undermines a union’s efficacy in a way that breaches article 11. The ratio of the ECHR judgment applies equally to the unjustifiable discipline jurisdiction conferred by the 1992 Act on Employment Tribunals.
The consultation paper is timid and fails properly to implement the decision of the ECHR. The government should take the opportunity to repeal sections 174 and 64 and their related sections.
In ASLEF v UK the ECHR says the UK government must strike a balance between members’ rights and those of the union. The Government’s proposals do not comply with the Court’s strictures and mark a continued unjustified interference with trade union autonomy, contrary to Article 11.