Employment Bill Clause 19 - ASLEF v UK
Briefing from Thompsons Solicitors - October 2008
Thompsons, as the firm which acted in ASLEF v UK, is writing to Employment Bill committee members as we are convinced that the current Clause 19 will not ensure that UK law is in compliance with the decision of the European Court of Human Rights (ECtHR).
In our view Clause 19:
- does not comply with the ECtHR decision
- should be dropped in favour of repealing section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992
- will lead to further litigation and confusion
- would not have allowed ASLEF to expel Jay Lee
- is an unnecessary further regulation of trade unions
ASLEF v UK
In ASLEF v UK the ECtHR made clear at paragraph 39:
“Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosever wishes to join…By way of example, it is uncontroversial that religious bodies and political parties can generally regulate their membership to include only those who share their beliefs and ideals. Similarly, the right to join a union ‘for the protection of his interests’ cannot be interpreted as conferring a general right to join the union of one’s choice irrespective of the rules of the union: in the exercise of their rights under Article 11(1) unions must remain free to decide, in accordance with union rules, questions concerning the admission to and expulsion from the union.”
The decision therefore is not limited to exclusions for membership of political parties.
The Court 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 guidance and are a continued unjustified interference with trade union autonomy, contrary to Article 11and ILO Convention .
Clause 19 means that Option B - which was rejected during the BERR consultation - has reappeared (see background Appendix).
It is likely to result in more litigation against unions by individuals involved in far right parties and by unions against the Government.
In Thompsons’ view, the requirement in Clause 19 (4C) that a union has either a rule or an objective which outlaws membership of “that political party” fails to understand the ECtHR’s decision or properly amend the law in the light of the ECtHR decision and will be open to further costly challenge either in the domestic courts or the ECtHR in an appropriate case.
In ASLEF v UK the Court ordered the Government to pay the unions’ and their lawyers’ costs.
Employment Tribunals will have to determine whether as a matter of fact that the Rules or objects of a trade union do outlaw “that political party”.
Repealing s174 Trade Union and Labour Relations (Consolidation) Act 1992 will avoid such costly challenges to UK law. There is no continuing purpose for section 174 and it remains the most straightforward option for achieving compliance with the ECtHR ruling.
Expulsion of Jay Lee
It is notable that while ASLEF’s Rules say “no person shall be admitted into membership of ASLEF if by choice they are members of, supporters of, or sympathisers with, organisations which are diametrically opposed to the objects of the union, such as a fascist organisation”, the rule does not name the BNP.
Were clause 19 to be passed as drafted, ASLEF could still not expel Mr Lee under domestic legislation. The ECtHR said the union could and therefore the Government would be exposed to further challenge by their failure to properly implement the ECtHR decision.
In addition Clauses (4F) – (4G) seek to enshrine in statute matters which are properly for trade union Rule Books and an unnecessary gloss on the ASLEF v UK decision.
A trade union is required as a matter of contract with its members to act in accordance with its Rules. All unions have disciplinary Rules, many have highly developed procedures, some are far more developed then employers’ own disciplinary procedures.
The reality is that there are very few expulsions as unions use these procedures wisely and rarely.
Increased regulation of trade unions
Trade unions are already heavily regulated in the UK. Clause 19 amounts to continued unnecessary over regulation.
Trade Unions have extensive democratic structures in accordance with their own Rule Books which are themselves subject to oversight by the Certification Officer (see section 3 of the TULR (C) A 1992).
Members are able to enforce their rights under trade union rules either as a matter of contract through the civil courts or through a complaint to the Certification Officer.
If a member is expelled without the trade union’s Rules being followed then they have a right under their membership contract to bring a claim for breach of contract including recovery of any losses sustained. Alternatively, such a member can complain to the Certification Officer.
A requirement that the relevant political party be named in the Rules or objects section (4D requires that it must be reasonably practicable for the objective to be ascertained by the person applying to join the union, or reasonably practicable for the person being expelled to ascertain it) would be an invitation to the far right parties liable to otherwise fall foul of trade union Rules and objects to regularly change their names.
Trade unions may have policies or objects from the 1970s and Rules prohibiting membership of the National Front.
Newer policies may refer to the British National Party. However, if there were to be a splinter group from the British National Party, under the current drafting of the clause such a political party would not be caught.
There would not need necessarily to be a splinter group, but a far right party could just regularly (but in a minor way) change its name year on year, calling itself British National Party 2008, 2009 etc to avoid a trade union ever being able to expel for membership of that party. The “new” party would not be named in the Rules regardless of whether its views or activities were diametrically opposed to those of the trade union concerned.
And what of organisations associated with far right political parties but which are not themselves political parties: Combat 19 for example?
It would be ironic if the Employment Bill, which is to repeal the Statutory Grievance and Disciplinary procedures that employers and others believe amount to unnecessary over regulation, resulted in increased requirements on trade unions’ procedures in relation to expulsion of their members.
Some members of the House of Lords, when considering the original Clause 17, were concerned that expelled trade union members could lose their jobs. This resulted in the insertion of Clause (4G).
Committee members too were concerned about the “no detriment” provision.
Clauses (4G) adds new provisions in relation to conditions applying to individuals expelled or excluded for membership of a political party. These include “(c) the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of a trade union”.
Closed shops were outlawed by the 1992 Act. It is therefore unclear why the House of Lords thought that someone could lose their job as a result of expulsion from the relevant trade union. We are not aware of any evidence of any such individual losing their job as a result of expulsion from a trade union.
There is already protection from dismissal and discrimination by employers on grounds of being or not being a union member. The individual therefore already has redress against the employer.
Of course there may be circumstances where an employer takes a separate decision to discipline or dismiss an employee for misconduct. It is foreseeable that an individual espousing extreme political views or displaying literature promoting offensive views might find that their behaviour is in breach of an employer’s equal opportunities or diversity policies.
However, any such behaviour would be dealt with by the employer under their procedures and if a decision was made to dismiss that employer might face a separate unfair dismissal case.
Unfair dismissal law provides remedies for such circumstances and there is no reason why trade unions should face challenge for a decision (dismissal by the employer) that was not within their power.
The ECtHR does refer in their reasoning at para 50 to the issue of detriment to Mr Lee. They do so in the context that in weighing Mr Lee’s individual rights against the union’s rights they:
“were not persuaded…that the measure of expulsion impinged in any significant way on Mr Lee’s exercise of freedom of expression or his lawful political activities. Nor is it apparent that Mr Lee suffered any particular detriment save loss of membership itself in the trade union”.
Read in context the principle of “no detriment” was not elevated by the court to being decisive in its weighing exercise. Therefore (4G) is entirely unnecessary and in our view does not properly implement the ECtHR decision.
Repeal Section 174
As we said in our response to the Government’s consultation paper, in the light of the ASLEF v UK decision there is no continuing purpose for section 174 and it should be repealed.
Repealing the whole of 174 was not considered by the Government despite the submissions of the TUC and trade unions. So of the two options presented by the Government we preferred Option A (see Appendix) because it was less convoluted and introduced a greater degree of clarity to the section.
Yet repealing 174 remains the most straightforward option for achieving compliance with the ECtHR ruling.
The ECtHR found that section 174 (as amended in 2004 – see Appendix) violated the right to freedom of association and to form and join trade unions under Article 11.
Clause 19 now makes section 174 hugely more complicated. It is inconsistent with the ECtHR decision and imposes yet more restrictions on trade unions who are already over regulated by statute.
History of Clause 19
The European Court of Human Rights decided in the case of ASLEF v UK 2007 that Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 which provides that an individual shall not be excluded or expelled from a trade union by reason of “protected conduct” which includes the individual being a member of a political party violates the right to freedom of association and to form and join trade unions under Article 11 of the European Convention.
As a result the then DTI issued a consultation document in May 2007. In the introductory paragraphs it stated: “The UK Government does not intend to appeal the judgment and recognises that the relevant parts of trade union law in this country should be amended to ensure compatibility with the Convention”.
Two options were presented for consultation:
Option A to remove any explicit reference to a special category of conduct relating to political party membership or activities; and
Option B to retain the special category of conduct relating to political party membership and activities but introduce certain safeguards against abuse (to make sure that the political party membership or activity concerned was incompatible with a rule or objective of the union and that the decision to exclude or expel was taken in accordance with union rules).
The most straightforward option of repeal of the whole of section 174 was not considered.
Following the consultation, BERR introduced Clause 17 of the Employment Bill in the House of Lords. The wording was consistent with Option A.
During the course of the debate during the committee stages in the House of Lords and in response to amendments a substantially redrafted Clause was carried.
Clauses 19 follows the Option B approach.
The 2004 amendment to section 174
The Trade Union and Labour Relations (Consolidation) Act 1992, section 174 has already been the subject of amendment by the Government in 2004.
The 2004 amendment arose from the case of Associated Society of Locomotive Engineers and Fireman v Lee (2004) UKEAT/0625/03.
Mr Lee was expelled by ASLEF after the union received reports that he was standing as a candidate for the BNP, had previously stood as a candidate for the BNP, had threatened anti-racist campaigners, had written articles which promoted racist and fascist views and had dressed as a priest and handed out anti-Muslim propaganda outside cathedrals.
The Employment Appeal Tribunal (EAT) held that the issue was whether he had been expelled merely for being a member (which was prohibited) or whether he had been expelled “only because of his statements, acts and omissions” (which would be lawful). As the original Employment Tribunal had failed to appreciate the distinction, the EAT held that the case must be remitted to a different tribunal.
The Government then sought to enshrine the EAT approach in legislation in the October 2004 amendments.
A distinction is made between membership and activities but it remains for Employment Tribunals to resolve the factual issue of where the dividing line is between the two. The language of the section remains convoluted and is entirely inaccessible to an ordinary trade union member without the assistance of legal explanation.
The amendment made it clear that it was not unlawful to expel from the trade union for conduct which consists of activities undertaken by an individual as a member of a political party. So standing as a candidate, canvassing or making political speeches for the BNP would not be protected conduct and trade unions would be able to expel.
It remains unlawful for a union to exclude merely for membership of political party.
It is noteworthy that around the same time as the 2004 amendments, various Government departments, including the Prison Service, adopted policies to prevent members of the BNP working for them.