European Court of Human Rights

Information Note on the Court’s case-law No. 173

April 2014

National Union of Rail, Maritime and Transport Workers v. the United Kingdom - 31045/10

Judgment 8.4.2014 [Section IV] See: [2014] ECHR 366 & [2012] ECHR 1717

Article 11

Article 11-1

Freedom of association

Ban on taking secondary industrial action against an employer not party to a labour dispute: no violation

Facts - The right to take secondary (as opposed to primary) industrial action was restricted in the United Kingdom in 1980 and such action has been unlawful since 1990.* In 2007 a group of 20 employees of Company J, all members of the applicant trade union, were transferred to Company H. Two years later they went on strike when Company H indicated it was going to reduce their terms and conditions to the level of its other employees. The strike led Company H to make a revised offer, which the workers concerned initially rejected but ultimately had no alternative but to accept. In its application to the European Court, the applicant union argued that the strike by its members at Company H had been rendered ineffective by the statutory ban on secondary action, which had prevented it from organising a sympathy strike at the larger Company J.

The applicant union also complained that the rules of national law governing the organisation of a strike ballot were too strict and detailed. As a result, an employer had succeeded in obtaining an injunction restraining it from calling a strike over pay and conditions on the grounds that the applicant had failed to specify clearly enough the exact job descriptions of the workers concerned.

Relying on Article 11 of the Convention, the applicant union alleged that the restrictions on strike-ballot notice and the total ban on secondary strike action had hampered its ability to protect its members’ interests.

Law - Article 11

(a)  Strike-ballot notice - There was no basis on which the Court could find that the applicant union’s exercise of its rights under Article 11 had been interfered with over and above being required to comply with the procedural requirements set down in law, which it had ultimately succeeded in doing. Although the applicant union had experienced some delay in taking action to protect the interests of its members, it had succeeded in leading a strike two months later, which had in turn induced the employer to improve its offer to union members. The offer had been accepted and it had taken effect as a collective agreement shortly afterwards. The Court could only examine complaints in the light of their concrete facts and what this situation disclosed in reality was ultimately successful collective action by the applicant union on behalf of its members.

Conclusion: inadmissible (manifestly ill-founded).

(b)  Secondary strike action - This was the first time the Court had had to determine whether the right to secondary action falls within the scope of Article 11. The Grand Chamber had confirmed in Demir and Baykara v. Turkey that the Court must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. Secondary action was recognised and protected under International Labour Organization (ILO) Convention no. 87 and the European Social Charter and it would be inconsistent for the Court to adopt in relation to Article 11 an interpretation of the scope of freedom of association of trade unions that was much narrower than that which prevailed in international law. In addition, many European States had long accepted secondary strikes as a lawful form of trade-union action. The statutory ban on secondary action had thus interfered with the applicant union’s right to freedom of association.

It was undisputed that the interference had been prescribed by law, namely section 224 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Court was also satisfied that the ban had pursued the legitimate aim of protecting the rights and freedoms of others, which included not only the employer directly involved in the industrial dispute but also the wider interests of the domestic economy and the public potentially affected by the disruption caused by secondary industrial action, which could be on a scale greater than primary strike action.**

As to whether the interference had been necessary in a democratic society, the Court did not need to decide whether the right to strike itself should be viewed as an essential element of freedom of association, such that any restriction on the exercise of that right would impinge on the very essence of that freedom. The applicant union had exercised two of the elements of freedom of association that had been identified as essential: the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and the right to engage in collective bargaining.

The Court rejected the applicant’s contention that Contracting States should only be accorded a very narrow margin of appreciation in this area. This was not a case in which the restriction imposed went to the very core of trade union freedom, such as the dissolution of a union. The breadth of the margin in cases such as the applicant’s had to be assessed in the light of relevant factors such as the nature and extent of the impugned restriction, the object pursued and the competing rights and interests of other individuals who were liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground among the Council of Europe member States could also be pertinent, as could the existence of an international consensus as reflected in the relevant international instruments.

The nature and extent of the interference suffered by the applicant union - which had been able to lead a strike, albeit on a limited scale and with limited results - had not struck at the very substance of its freedom of association. As to the object of the interference, the subject matter in the case related to the social and economic strategy of the respondent State, a sphere in which the Court usually allowed a wide margin of appreciation. That conclusion was not affected by the fact that the United Kingdom was one of only a small group of European States to have adopted an outright ban on secondary action or by the negative assessments of the impugned ban on secondary action that had been made by the relevant monitoring bodies of the ILO and European Social Charter, since they had been looking at the issue from a different, more general, standpoint.

The ban on secondary action had remained intact for over twenty years, notwithstanding two changes of government. This denoted a democratic consensus in support of it, and an acceptance of the reasons for it, spanning a broad spectrum of political opinion in the United Kingdom. This indicated that in their assessment of how the broader public interest was best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities had relied on reasons that were both relevant and sufficient for the purposes of Article 11 of the Convention.

In sum, the facts of the specific situation challenged in the present case did not disclose an unjustified interference with the applicant union’s right to freedom of association, the essential elements of which it had been able to exercise: in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work. In this legislative policy area of recognised sensitivity, the respondent State enjoyed a margin of appreciation broad enough to encompass the existing statutory ban on secondary action, there being no basis in the circumstances of this case to consider the operation of that ban in relation to the impugned facts as entailing a disproportionate restriction on the applicant union’s right under Article 11.

Conclusion: no violation (unanimously).

(See also Demir and Baykara v. Turkey [GC], 34503/97, 12 November 2008, Information Note 113)

* Secondary or sympathetic industrial action is strike action against an employer other than the employer party to the industrial dispute which is taken in order to exert indirect pressure on the employer who is involved in the dispute.

** For the position in a case concerning primary strike action, see UNISON v. the United Kingdom (dec.), 53574/99, 10 January 2002, Information Note 38

 

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