Bank holiday strike?

As many of us contemplate traffic jams this weekend and whether we can have our rail tickets refunded, here is a timely reminder of the decision in the case of the National Union of Rail, Maritime and Transport Workers v United Kingdom [2014] IRLR 467

The case was unwelcome news for employees but welcome news for employers. The European Court of Human Rights held that two of the central parts of the UK’s legislation on industrial action were not in breach of the right to freedom of association of the European Convention of Human Rights, as contended by the RMT. In particular it held that:

• It would not consider the arguments made by the RMT that the rules set out in the Trade Union & Labour Relations (Consolidation) Act 1992 relating to the conduct of industrial action ballots, and notifications were unnecessarily burdensome and constituted a breach of the right to freedom of peaceful assembly and of association with others (Article 11 of the ECHR). This was because the Court said that as the RMT was successful in the underlying High Court case that the appeal arose from, this part of the claim was “manifestly ill-founded” and as such inadmissible.
• The UK’s prohibition on secondary industrial action was inconsistent with Article 11. However, despite being inconsistent, it is still lawful because it is prescribed by law, it pursued a legitimate aim of protecting the rights and freedoms of others (namely, those with no connection to the dispute) and it was necessary in a democratic society to achieve that legitimate aim.

This decision has provided employers with confirmation that they remain free to continue to point to legal shortcomings in the conduct of ballots brought by Unions, in the hope of negotiating a climb-down or seeking an injunction. It is evident that employees have not been put-off by this decision and that employers have felt encouraged to continue to use their powers to object to ballots. For example, this week, National Rail has said that it plans to take legal action (despite negotiations taking place under the chairmanship of ACAS) against the RMT and the TSSA to force them to withdraw notice of the 24-hour strike that they have planned for this Bank Holiday Monday (25/05/15) over pay and redundancies.  If it goes ahead it would be the first national train strike in two decades. National Rail is seeking to argue that there are numerous defects in the ballot, so if matters are not resolved by negotiations, National Rail will bring legal action. At the time of writing, the TSSA has called off its strike plans following an offer from National Rail, however the position in relation to the RMT is as yet unclear.

Although the first part of the decision in the case above appeared to support the rules and favour employers, the court indicated that in relation to the second part it felt that the UK’s law relating to secondary industrial action is on the stricter end of the scale compared to other nations regulatory approaches. Additionally, it stated that the UK’s position is “out of line with a discernible international trend towards a more liberal position”. Despite the Court’s views, this was not sufficient to persuade the Court that the breach was unlawful (as the UK’s legislative authorities had relied on relevant, sufficient and proportional reasons for its decision), but it does demonstrate that there is some thought that the UK may need to relax its rules relating to strike action.

Despite this body of thought and seemingly clear criticism of the UK’s prohibition on secondary industrial action (which harks back to Thatcherism and a dismantling of Trade Union powers in the late 1980s and 1990s) the new Government has felt empowered by the case above: in its first Queen’s Speech it outlined plans to amend the laws relating to strikes. In particular, the Conservative party has said that it plans to ban strikes unless 40 percent of people vote in favour of industrial action and there needs to be at least 50 percent turnout: i.e. 50% of those entitled to vote for a strike must vote one way or the other. Interestingly, the RMT’s figures in current industrial action ballot mentioned above would have passed the proposed new stricter rules, whereas but the TSSA’s numbers would not.

The Government also plans to prioritise proposals which would allow employers to hire agency staff to cover for those who are on strike. These proposed plans, if implemented, will ensure that the public and employers are less adversely affected by the strikes and they will ensure that the same situations that arose during the Coalition Government (two thirds of strike ballots failed to attract the support of even half of the workforce. In some cases, strikes have gone ahead with the support of as few as one in 10 workers) do not arise. These proposals will therefore be welcome news for employers, but they appear to be contrary to the body of thinking mentioned above and appear to be a clear indication of the Government’s approach to undermining of employment law rights more generally.

It is clear that the law regarding industrial action continues to have significant implications for both sides of the Transport Industry, as well as for the public. We await the outcome of the National Rail legal action and the new Government’s proposed amendments.