Legislation designed to protect trade union members from being victimised by
their employers is flawed and must be changed
Section 146(1) of the Trade Union and Labour Relations (Consolidation) Act
1992, gives employees the right not to be subjected to any detriment by an act,
or any deliberate failure to act, by their employer, whose aim is to prevent or
deter them from being a member of an independent trade union, or to penalise
them for so being. Effectively, it is intended to protect employees who want to
be members of trade unions from being victimised.
In Wilson-v-United Kingdom (European Court of Human Rights 2 July 2002) the
pay and conditions of a number of employees had traditionally been negotiated
by collective bargaining, but then their employers de-recognised the relevant
trade unions. The employees were told that they would receive pay increases,
but only on condition that they sign new personal contracts and give up their
union representation.
The employees refused, and brought tribunal claims arguing that they had
been subjected to a detriment on account of their union membership. They won at
tribunal, then the EAT upheld the employer’s appeal, but the Court of Appeal
restored the tribunal’s original decision. However, the employers were
successful in the House of Lords, which said that the employer’s conduct had
not been for the purpose of preventing, deterring or penalising union
membership, because unions provide more services than just the negotiation of
contracts of employment. Membership of a trade union could not be equated with
the use of collective bargaining services.
The employees and their unions went to the European Court of Human Rights (ECHR),
arguing that UK law did not protect their convention rights. Under Article 11
of the European Convention on Human Rights, everyone has the right to freedom
of peaceful assembly and to freedom of association with others, including the
right to form and join trade unions for the protection of their interests.
The UK Government argued that the employees have no right under Article 11
to have their terms negotiated by way of collective bargaining, or to equality
of benefits with employees on personal contracts.
The ECHR held that freedom to belong to a trade union under Article 11 is
worthless if employees are then restrained from having their union make
representations on their behalf. UK law had therefore failed to prevent
employers from offering staff financial incentives to surrender rights to union
representation, and had not prevented those same employers from victimising
employees who were not prepared to give up those rights.
The overall effect was a "disincentive or restraint on the use by employees
of union membership to protect their interests". As a consequence, Article
11 had been violated.
The Government will now have to look at changing the law in this area. At
the time of these events, s146(1) did not cover a "deliberate failure to
act" in respect of employees. However, while the law does now cover that,
it still falls short of enacting the convention rights.
In addition, the law has since also been amended to allow an employer a
defence to s146 if the employer’s aim was to further a change in his
relationship with his employees.
Although section 148(3) was not an issue in this case because it post-dated
the facts, it must clearly be in breach of Article 11 as it erodes the
convention rights even further.
Key points
– Employers may not put disincentives or restraints on the use of union
membership by their employees
– The use of collective bargaining is an essential element of the right to
belong to a union
– The Government will have to look at increasing the protection given to
union members
By Sarah Lamont a partner at Bevan Ashford
