Unions decide who can be a member

Following a court decision earlier this year, trade unions are to regain the right (within limits) to choose who can – and cannot – be a member. Victoria Phillips, head of Thompsons’ Employment Rights Unit, looks at the implications of that decision and the government’s response to it.

Background to the decision

The train driver’s union ASLEF decided to expel one of its members after he stood as a BNP candidate in local elections. This was contrary to ASLEF’s rule that individuals who hold views that are diametrically opposed to the objects of the union (such as fascist organisations) cannot be members.

However, the BNP member challenged that decision and two employment tribunals agreed with him, saying that section 174 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 bars unions from action that is due, at least in part, to membership of a political party.

So the union lodged a claim at the European Court of Human Rights (ECHR), arguing that UK law contravened article 11 (freedom of assembly and association) of the European Convention on Human Rights.

The question for the court was whether the UK government had struck the right balance between the member’s rights and those of the trade union. It decided that it had not (see weekly LELR 5).

The court noted that, just as an employee or worker should be free to join, or not join, a trade union without being sanctioned or subject to disincentives, the trade union should also be free to choose its members. Article 11 could not be interpreted as imposing an obligation on associations or organisations to admit anyone who wanted to join.

While the court had some sympathy with the notion that any worker should be able to join a trade union, it gave more weight to ASLEF’s right to choose its members. It recognised that trade unions are not bodies “solely devoted to politically-neutral aspects of the well being of members, but are often ideological, with strongly held views on social and political issues.”

Because Mr Jay Lee’s membership of the BNP was in fundamental conflict with ASLEF’s political objectives, ASLEF was therefore entitled to expel him from membership. Consequently section 174 was in breach of article 11 in making his expulsion unlawful.

Current law

Following amendments to the law in 2004, section 174 of TULRCA starts from the presumption that anyone who wants to become (or to remain) a member of a trade union has the right to do so. Unions are only allowed to exclude or expel them for one of a number of permitted reasons, which includes unacceptable “conduct” by the member.

Section 174 also provides (in effect) that whereas taking part in the activities of a political party is not protected, mere membership counts as “conduct" and so cannot give grounds for exclusion or expulsion.

And if a union does expel or exclude someone because of their membership of a political party, the 1992 Act gives that member the right to complain to an employment tribunal and ask for compensation ranging from a minimum of £6,600 to a staggering £69,900. Little wonder that some groups on the extreme right have been encouraging members to make full use of these provisions.

Consultation

In the light of the court’s decision, the government has little option but to change the law to give unions more autonomy and duly issued a consultation document in May (which closed in August). Arguing that the judgment was rooted in the circumstances of this particular case, the government’s approach can best be described as minimalist.

The two options it proposed were:

Option A – amend section 174 to exclude any explicit reference to a special category of conduct relating to political party membership and activities. So membership of a political party, not just taking part in its activities, would cease to be protected.
Option B – retain the special category of conduct relating to political party membership and activities, but amend the rights not to be excluded or expelled. The union’s decision would therefore be unlawful unless:

• the political party membership or activity concerned was incompatible with a rule or objective of the union, and
• the decision to expel was taken in accordance with union rules or established procedure.

Given that the second option would, undoubtedly, generate arguments about what constitute the “rules and objectives” of a union, the first option seems preferable.

However, it is a pity that the government did not use this opportunity to propose far more substantial amendments to section 174 in particular (or repeal it altogether) and other restrictive trade union law in general.

Repeal of section 174

Overall, section 174 serves very little purpose, given all the other legal safeguards that are available to members of trade unions. Trade unions are, for instance, subject to similar restraints as employers and cannot therefore discriminate on grounds of race, sex, disability, religion and belief, sexual orientation and age.

And if a union breaches its own rules, members have a right to take their union to court or to make a complaint to the Certification Officer under section 108A TULRCA.

Members also have the right not to be unjustifiably disciplined under section 64 of the same statute.

In ASLEF, the ECHR said that section 174 amounted to an excessive restriction on the rights of trade unions to determine their own membership conditions. Effectively, it hampers the basic principle of trade union autonomy and should be repealed.

Repeal of section 64

The government would also do well to look at section 64 of TULRCA, which gives individual members of unions the right not to be unjustifiably disciplined.

That includes taking action against a member because they did not take part in or support a strike or some other form of industrial action.

This rule applies whether or not the majority of members supported the action following a lawful ballot. In other words, unions cannot enforce a democratic decision against a dissenting member, even if that member agreed to the rules and took part in (or even voted in favour of) the ballot.

This section of the law is now difficult to reconcile with the idea of freedom of association as endorsed in ASLEF -v- UK. How can one member have the right to participate in a democratic decision about taking industrial action, but not be subject to the rules of the union when they refuse to abide by the collective decision reached by all the other members? It simply does not make sense.

In the meantime

Until changes are made to the law, unions should be alert to claims brought under section 174 by (among others) excluded BNP members. The Human Rights Act 1998 says that employment tribunals have to construe section 174 “so far as is possible” in a way which is compatible with the decision of the ECHR in ASLEF.

The duty on tribunals, however, is only to interpret the law and not to re-write legislation. So tribunals are unlikely to re-write the wording of section 174 to allow a union to expel someone for simple membership of a political party.

In that event, the union should consider lodging a claim before the ECtHR, just as ASLEF did, as the arguments would essentially be the same. It would be important, however, to check first that there was no basis for an appeal, as the ECtHR will refuse to hear an application if the union has not first exhausted all domestic avenues.

Conclusion

It is clear that ASLEF -v- UK marks a break with the primacy of freedom of association as an individual’s right to belong (or not to belong) to a union. Instead, according to the ECtHR, unions have the right (within limits) to decide their own values and objectives, and exclude (or expel) people who oppose them.

Equally, it is clear that individuals have the right to participate in collective bodies, but that right is conditional on abiding by their rules and accepting the outcomes of decisions which they reach. The case also therefore reinforces the court’s groundbreaking decision in Wilson, Palmer, NUJ and RMT -v- UK (2002, IRLR 568).

The decision is very good news for trade unions. It’s just a pity that the government doesn’t appear keen to comply with it.

To read Thompsons' response to the government consultation on ASLEF -v- UK go to: www.thompsons.law.co.uk/ltext/implications-trade-union-law.htm