Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1949)

Article 3 of the Convention. Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the employer’s consent constituted, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes an essential means for workers to promote and defend the interests of their members. The Committee therefore requested the Government to indicate any measures taken or contemplated with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action. The Committee notes the Government’s indication that it does not consider that the protection against dismissal of employees taking official action sets an arbitrary limit. The Government states that it is important to consider the interaction between the strands of the existing protections. For 12 weeks, dismissal for official and lawfully organized industrial action is automatically unfair. In tandem, no matter what time period has passed, an employer cannot fairly dismiss a worker for taking industrial action if the employer has failed to take reasonable steps to resolve the dispute with the trade union. Finally, all such employees will benefit from wider unfair dismissal protection which means that they can refer their dismissal to an employment tribunal which could order their reinstatement or award them financial compensation. The Government believes that the interaction between these provisions means that it is in conformity with the provisions of the Convention and it remains of the view that it is not appropriate to prevent an employer dismissing an employee under any circumstances when they take industrial action. The Committee once again requests the Government to review the legislation, in full consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection available to workers who stage official and lawfully organized industrial action and to provide information on the steps taken in this regard.

Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government’s indication that the Court of Appeal decision in RMT v. Serco and in Aslef v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC’s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC.