Wilson v UK [2002] IRLR 568
Thompsons represented Dave Wilson and the National Union of Journalists (NUJ) in their landmark case before the European Court of Human Rights (ECHR). Their case, together with the joined cases for Terence Palmer, his fellow RMT members and their union, was the first case where trade unionists had ever succeeded before the ECHR. After a twelve year legal battle, the outcome rights a legal wrong against trade unions and their members: a wrong which must now be rectified by changing current legislation.
The cases
Dave Wilson was employed by Associated Newspapers at the Daily Mail. The Editor wrote to all journalists derecognising the NUJ and offering a 4.5% pay rise to all staff who signed new contracts giving up the right to have terms and conditions set by collective bargaining. Dave Wilson refused to sign. He was denied the pay increase.
The RMT applicants were employed by Associated British Ports. They were also 'offered' personal contracts, with a 10% pay rise if they agreed to give up collective bargaining rights. They refused to sign and received a lower pay rise. The union was later derecognised.
The cases were successful in the Court of Appeal but the Conservative government immediately responded by changing the law - the 'Ullswater amendment' (named after the Peer who introduced it) - to overturn the Court of Appeal judgment.
Not content with this, the employers appealed to the House of Lords, which found against the trade unionists. Their Lordships decided that the legislation protecting trade unionists against 'action short of dismissal' applied only to 'acts' and not to the 'omission' of not offering a pay rise. They also found that taking action against trade unionists with the object of ending collective bargaining was not action on grounds of trade union membership or activities: they said that collective bargaining over employment terms and conditions was not a defining characteristic of trade union membership.
ECHR judgment
The trade unionists appealed to the ECHR on the basis that their right to freedom of association protected by Article 11 had been infringed, and won.
Although the Court would not go so far as to say that the Convention imposes an obligation on employers to enter into collective bargaining with a trade union representing workers, the Court said that unions must be free to organise industrial action to persuade an employer to enter into collective bargaining. Employees must be free to instruct their union to make representations to their employer or take action in support of their interests. This is fundamental. In the ECHR's words:-
'If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers'.
UK law therefore breached the Convention because it allowed employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership: namely collective bargaining. UK law permitted an employer to act in this way with the aim of bringing an end to collective bargaining.
This allowed UK employers to undermine or frustrate a union's ability to strive for the protection of its members' interests. By permitting employers to use financial incentives to induce employees to surrender important union rights, the UK violated Article 11 of the Convention and breached the rights of the trade unions and their members.
Implications
The government will need to make changes to UK legislation in order to comply with the judgment.
The ECHR judgment considered the law at the time of the original actions against Mr Wilson, Mr Palmer, their unions and colleagues. This pre-dated the Ullswater amendment in 1993, the subsequent amendments made by the Employment Relations Act 1999 and the introduction of statutory recognition procedures.
It is clear from the judgment that the introduction of statutory recognition procedures does not bring the UK into compliance with the Convention. The Court did not consider that the absence in UK law of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of the Convention. It follows that the introduction of a statutory recognition procedure does not deal with the issue.
The current protection against both dismissal and action short of dismissal on grounds related to union membership or activities provides a remedy where an employer acts with the purpose of preventing or deterring an employee from being a member of a trade union or taking part in its activities, or penalising him for doing so. This must now go further. The protection must not be confined merely to membership or activities, but also to employees instructing or permitting the union to make representations to their employer or to take action in support of their interests on their behalf (see paragraph 46 of the judgment). This is 'an essential feature of union membership (paragraph 47).
This overturns the judgment of the House of Lords in the Wilson and Palmer case, re-asserts the view of the Employment Appeal Tribunal in Discount Tobacco v Armitage [1990] IRLR 15.
The legislative protection must specifically include protection against detriment where the employer acts with the purpose or effect of bringing an end to collective bargaining (see paragraph 47 of the judgment). This will necessarily involve the deletion of the Ullswater amendment which permits employers to take action against trade unionists where their purpose is to introduce individual contracts or end collective bargaining.
This will involve amendments to primary legislation. It will not be enough for the government to utilise section 17 of the Employment Relations Act 1999 to make regulations. That section does not go far enough. It only gives the power to make regulations in relation to employees who suffer detriment because they refuse to enter into a contract which differs from existing collective agreements. The application of the regulation-making power is also constrained by the Conservative amendment introduced as section 17(4) which seeks to allow employers to pay higher wages or other payments to those who chose to give up bargaining rights, provided those higher wages relate to services provided by the worker under the contract. This would contradict paragraph 47 of the judgment which outlaws provisions which treat less favourably employees who were not prepared to give up collective bargaining rights, whatever the employer's purpose in doing so.
These are essentially 'anti-discrimination' provisions which protect trade unionists against detriment for exercising their rights of membership. The extension of these rights which must follow from the decision is welcome, but is not the end of the story.
The judgment stresses that the role of the state in these matters is not a passive one: it is not confined to introducing measures which provide a remedy for less favourable treatment of trade unionists. It is expressly the role of the state to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with employers (paragraph 46). The union and its members must be free to seek to persuade the employer to listen to what it has to say on behalf of its members (paragraph 44). The failure to protect this right violates not just the right of the employee, but the right of the trade union (paragraph 48).
This points to a requirement for a statutory entitlement to be represented by one's union in relation to matters affecting the employee's interests at work. This arises separately from the current statutory recognition procedures. It is not adequately dealt with by the provisions of section 10 - 15 of the Employment Relations Act which provide only the right to be accompanied (not represented) by a trade union and are confined to hearings under disciplinary and grievance procedures. The right will need to go much further: to enable union members to be heard via their union on all issues affecting their interests at work. This will have far-reaching implications, particularly for employees and employers where unions are not currently recognised. Employers will have to listen and respond to representations on pay, conditions and other issues from unions representing employees when employees wish to be represented in that way.
The Wilson and Palmer judgment will have profound implications for UK employment law and for representation at work.