No surrender

A 13-year battle over the right to union representation is almost certain to
change UK employment law.  Phil Boucher

Thirteen is often considered to be an unlucky number. But for David Wilson
and Terry Palmer that couldn’t be further from the truth.

For that is the number of years it has taken the pair to win a case that
began in an ordinary industrial tribunal and moved on to the Court of Appeal,
the House of Lords and, eventually, the European Court of Human Rights. As a
result of their tenacity, UK employment legislation is almost certain to

Wilson and Palmer’s trouble started when they refused to sign personal
contracts from their respective employers which removed their right to have a
trade union collectively bargain for them.

In both cases, their employers (the Daily Mail for Wilson and Associated
British Ports for Palmer) responded by withholding salary increases awarded to
the rest of the firms’ staff.

The two responded with an action before the Industrial Tribunal under Section
32 (1) of the now-repealed Employment Protection (Consolidation) Act 1978. This
gave employees the right to be protected from action taken against them to
prevent or deter them from being or seeking to become a member of a trade

In 1993, the case finally reached the Court of Appeal which found, as the
tribunal had originally done, in favour of Palmer and Wilson.

The employers appealed to the Lords just as the new Trade Union Reform and
Employment Rights Act 1993 was passing through that House. A vital amendment to
the Act proposed by Viscount Ullswater provided that where an employer’s
purpose in offering inducements was to further a change in his relations with
all or any class of his employees, the employer would not be acting unlawfully,
unless no reasonable employer would have taken such action.

When the case finally came to the House of Lords, it was overruled, but not
on the basis of the Ullswater amendment, as it became known, but because the
failure to give the pay rises was not an act but an omission, which was not
covered by the relevant legislation.

Palmer and Wilson’s case was finally heard by the ECHR in January of this
year. The Court declared the right to consult a union forms an integral and
essential part of the right to join a trade union. It also said the Ullswater
amendment made the right to join a union "illusory" and that placing
a "disincentive or restraint" on an employee’s right to union
membership constitutes a breach of Article 11 of the European Convention on
Human Rights on the right to freedom of assembly and association.

As Sarah Lamont, partner at Bevan Ashford, says: "The ECHR held that
the freedom to belong to a trade union under Article 11 is worthless if
employees are then restrained from having their trade union make
representations on their behalf. UK law had failed to prevent employers from
offering staff financial incentives to surrender rights or from victimising
employees who have not been prepared to give up those rights."

The ECHR also found that UK law was in breach of article 11. The public
sector, which has to work in compliance with the rulings of the ECHR, is
already being directly affected by this ruling. Tribunals will also consider it
whenever the test of reasonableness in the Ullswater amendment is relevant.

The DTI has acknowledged that the law protecting union members from
detriments needs to be tightened.

The law has been criticised by both the European Social Charter’s Committee
of Independent Experts and the International Labour Committee on the Freedom of

In light of this pressure, it is almost certain the Government will make
changes to the legislation in its current review of the Employment Relations
Act 1999.

The Government has promised that the consultation process will finish in
time to legislate within the lifetime of this parliament. There will also be a
full public consultation exercise at the end of the year, so changes to the law
could be introduced before the next general election.

Speaking in a House of Commons debate on trade unions last month, DTI junior
minister Nigel Griffiths indicated the Government would take the ECHR’s ruling
into account. Griffiths said the judgment "strongly suggests that the law
providing protection against detriment on grounds of trade union membership
needs to be tightened".

The TUC’s Sarah Veale says: "Employers would be wise to ensure that
their grievance and disciplinary procedures allow for representation. They also
need to make sure that personal contracts have no hint of direct or indirect
inducement to leave a trade union."

Diane Sinclair, lead adviser on public policy at the CIPD, points out that
only organisations with the same category of employees on different contracts
are likely to be directly affected by the changes.

Nevertheless, the CBI in particular is campaigning for a common sense
approach. Katja Klasson, head of employee relations at the CBI, says: "We
will defend the right for employers and employees to insist on individual
contracts. As long as it is not used to entice people away from their union
membership, it remains a fundamental right for all concerned."

Whatever the outcome, the ruling has created an important milestone. For the
first time, UK workers have a written declaration of their legal right to be
represented by a trade union. Previously, they were simply protected from
suffering a detriment because of it. And for some members of the workforce that
alone could make 13 the luckiest number of all.

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