Labour & European Law Review Weekly issue 5 01 March 2007
A union’s right to choose
Trade Unions have the right to choose their own members, the European Court of Human Rights (ECHR) has ruled in a case pursued by the train drivers’ union ASLEF against the UK government.
In ASLEF v UK, the ECHR said there had been a violation of Article 11 (freedom of assembly and association) when ASLEF was told by two Employment Tribunals that it could not expel a member on the grounds of his membership of the BNP.
Relying on Article 11 of the European Convention on Human Rights, ASLEF said it had been prevented from expelling one of its members due to his membership of the BNP, a political party which advocated views inimical to its own. It should be noted that the ASLEF Rule Book contains an express rule saying that individuals who hold views which are diametrically opposed to the objects of the union including fascist organisations cannot be members.
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 (see also Young James and Webster v the United Kingdom and Wilson and the National Union of Journalists v the United Kingdom) so should the trade union be equally free to choose its members. Article 11 could not be interpreted as imposing an obligation on associations or organisations to admit whosoever wished to join.
It said 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 unions must remain free to decide, in accordance with the union rules, questions concerning admission to and expulsion from the union.
The ECHR was asked to consider the extent to which the State may intervene to protect a trade union member against measures taken against them by their union. While it was accepted that Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibited the expulsion of the member as it barred unions from action that was motivated, at least in part, by membership of a political party, the crucial question for the court was whether the UK government struck the right balance between the member’s rights and their trade union.
The ECHR said it had not. It said the expulsion had not impinged in any significant way on the expelled member’s exercise of freedom of expression or lawful political activities.
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 their members, but are often ideological, with strongly held views on social and political issues.
Significantly, the ECHR said it was not reasonable to expect the union to have used the “pretext” of relying purely on the member’s conduct as a member of the BNP. The government amended Section 174 in 2005 to allow unions to expel members on that ground, but the unions said this was still too restrictive.
The impact of the ECHR decision in ASLEF v UK may be that the government will have to look again at the wording of Section 174. The decision is a significant victory for trade union autonomy. ASLEF instructed Thompsons and John Hendy Q.C. in this case.