The Court of Appeal has decided in Vining v London Borough of Wandsworth that the right to be consulted is one of the essential elements protected by article 11 (freedom of association) of the European Convention on Human Rights. It follows that a union must be allowed to pursue a claim for a protective award about whether there has been a failure to consult even if its members do not have collective consultation rights.
The two claimants, who worked as parks constables for the Council were dismissed on the ground of redundancy because of a reorganisation of the parks police service. They brought claims of unfair dismissal.
UNISON brought proceedings seeking protective awards for the Council’s failure to consult about proposed redundancies under section 188 of the Trade Union and Labour Relations (Consolidation) 1992 Act (TULRCA).
The Council argued that as the men were employed “in the police service”, they were not employees who were protected from unfair dismissal under section 200 of the Employment Rights Act 1996 (ERA) and were also excluded from the obligation to consult by section 280 TULRCA.
Tribunal and EAT decisions
At a hearing in January 2013, the tribunal decided that the officers were not employed “in the police service” and were therefore protected employees. It also held that UNISON could bring a claim for a protective award.
However, in June 2013, the Court of Appeal decided in London Borough of Redbridge LBC v Dhinsa and anor that parks police employed by local authorities were employed under “police service” contracts. At a subsequent EAT hearing, it was therefore decided that the men were prohibited from bringing claims for unfair dismissal. The EAT also overturned the decision that UNISON could bring a claim for a protective award.
The men appealed, arguing that their rights under article 8 (the right to lead an ordinary personal life) and article 14 (the right not to be discriminated against) of the European Convention on Human Rights had been violated. For its part, UNISON argued that by excluding parks police officers from trade union membership under section 280 of the 1992 Act and therefore from the right to be consulted under section 188 was a breach of article 11 (the right to freedom of association) under the Convention.
Decision by Court of Appeal
The Court of Appeal held that the facts of the case did not fall within the ambit of article 8 which could only be relied on in extremis, as in a Lithuanian case of a former KGB officer who was barred from all public sector posts and a wide range of responsible private-sector posts, with the result that he could not lead a normal personal life. Nor did article 14 apply, when read in conjunction with article 8. However, the Court agreed with the view expressed in Redbridge that excluding parks police from unfair dismissal protection was anomalous and an apparent injustice.
In relation to UNISON’s claim, the court held that the right to be consulted ahead of proposed redundancies was one of the essential elements protected by article 11. As Parliament had clearly intended to only exclude "traditional" police forces who employ constables and not parks police from the remit of section 280, it had overlooked the effect of the statutory language on this fairly small group of employees. By excluding them from the right to be consulted, their article 11 rights and those of the union had been breached. It therefore allowed the union to pursue its claim under section 189 of TULRCA for a protective award.
The case was returned to the employment tribunal to decide whether or not there had been a failure to consult.
Some human rights are absolute and cannot be interfered with. Others are not, and can be, but only where is justified and proportionate. “Traditional” police have what the court called “elaborate remedies” to replace the rights they don’t have, but parks police fell through the cracks and had no such equivalent. They had no protections or remedy. The government couldn’t offer any justification for this, and so when the court held that their article 11 rights were breached the case was won.