05 july 2012

By Roger Jeary

I was reminded recently of the gross inadequacy and unfairness of UK legislation on strikes. I was attending an interesting and informative IER seminar reflecting upon the Friction Dynamics trade dispute in Caernarfon, North Wales over 11 years ago, one of the longest industrial conflicts in British history with workers spending over two and half years on a picket line.

The IER briefing on the strike can be found here. It is not the strike itself which I wish to dwell upon but the illustration it provides of how British workers have little or no protection when embarking on legitimate industrial action.

The industrial action in this case was brought about through the actions of a new American owner of the factory and his clear determination to break the union organisation and undermine longstanding terms and conditions of employment. His actions ultimately led to industrial action commencing on 30th April 2001, but due to the complexities of UK legislation, the workers did not win an Employment Tribunal decision for unfair dismissal until December 2002. The employer then lodged an appeal, but went into administration in April 2003 before it could even be heard. Remedy did not follow until April 2004, when workers were finally given a basic pay award. But even then the employer was not forced to pay up and the bill was instead picked up by the taxpayer.

This case illustrates that even where a trade union jumps through the legislative hoops of ballots, picketing codes and the tribunal processes, the conclusion fails to deliver proper protection for workers. Employers, as in this case, who fail to abide by the law, however, get off scot free, even avoiding the responsibility of having to pay the final award. We are frequently reminded by governments that with rights come responsibilities – a phrase aimed at workers but rarely aimed or reciprocated by employers.

The UK ‘Right to Strike’ is little more than a short protected period when the employer cannot fairly dismiss a worker for withdrawing his/her labour in pursuance of a trade dispute. Of course the definition of a trade dispute itself is narrow and most significantly prevents the use of supportive action (secondary action) by other workers not directly involved in the dispute itself. In this case, as in many others, the effectiveness of the action was weakened significantly by the inability of members of the same union to take collective action as customers (the motor industry in the West Midlands) of the factory. But if the employer takes action short of dismissal during a dispute the workers have no protection or recourse in law. (This was illustrated most clearly in the British Airways/Cabin Crew dispute when the company withdrew travel concessions from workers who had been on strike.)

It is well known that UK legislation on strikes falls far short of the standards demanded of ILO Convention 87 and UK governments have been condemned by virtually all world and European bodies for its failings. The European Court of Human Rights has similarly condemned British laws in this field.

Of course there are some rights, and when they are breached by the employer workers do have the right to remedy at law. But what of that remedy? The right to re-engagement or re-instatement is surely what most workers seek having been dismissed unfairly. And how often do our tribunals deliver these remedies? Hardly ever. The statistics from employment tribunals lodged in 2010/11 show that out of 49,000 cases lodged less than 10% actually proceeded to a hearing and of those the sum total of 8 (yes eight!) ended in an award of re-instatement or re-engagement. Notwithstanding that fact, the employer can still ignore such an order with a minimal financial penalty then levied against them. Still the worker is left without a job having, in the eyes of the law, suffered unfair treatment from an employer.

Next time you hear politicians pontificating about the need to REDUCE the right to strike in the UK, usually because of the inconvenience it may cause them and others as they go about their cosy lives, remember the limited protection already afforded to workers. And whilst individual rights at work are important, those rights pale into insignificance when we understand the need for trade union rights to be able to defend workers from the worst excesses of employers who are using this recession as an excuse to reduce employment rights further still.

Our politicians have during the last three decades failed British workers as far as employment and trade union rights are concerned. Both Tory and Labour governments have either diminished the rights of trade unions or failed to restore them. The Coalition is further undermining rights by making access to justice more difficult. We wait to hear from the Labour opposition as to whether workers in the future can hold out some hope that fairness and justice will eventually be restored. Don’t hold your breath.

Click here to find out more about the Friction Dynamics employment law conference

The Institute of Employment Rights has long been arguing that secondary action is legal under Article 11 of the European Convention of Human Rights (ECHR). Our Chair John Hendy QC outlined this argument at our Friction Dynamics event. To find out more about the contradiction between UK law and the ECHR, see Days of Action by Hendy and IER President Professor Keith Ewing in our employment law publications section.

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