Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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. Return of workers to their posts following lawful industrial action. In its previous comments, the Committee had recalled that workers who stage a lawful strike should be able to return to their posts after the end of the industrial action, and requested the Government to provide information on any developments with regard to the review of the legislation in 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. The Committee notes the Government’s indication that the measures in place afford the necessary protection for workers dismissed for taking part in lawful industrial action. The Government states that trade union members who take lawful industrial action are protected against dismissal for the first 12 weeks and that virtually all industrial action in the United Kingdom lasts for less than 12 weeks. It further indicates that regardless of the duration of the industrial action, an employer cannot dismiss a workers for taking industrial action before having exhausted all available procedures for dispute resolution. It explains that where a person is unfairly dismissed in the United Kingdom, the Employment Tribunal may order reinstatement or re-engagement and where the employer refuses to obey such orders, the Employment Tribunal may award higher compensation to the individuals concerned. The Committee notes the Trades Union Congress (TUC)’s statement that this is a matter of continuing concern and, in particular, that the protection applies for the first 12 weeks of the dispute only and does not guarantee that workers involved in a dispute will be entitled to reinstatement, there being no prohibition on employers hiring permanent replacements. Furthermore, the TUC alleges that no steps have been taken to improve the security of those involved in a lawful strike and that, on the contrary, the position has been worsened by the Trade Union Act 2016, which by introducing new notice obligations, ballot thresholds and time limits significantly narrows further the scope of lawful industrial action, putting the workers at even greater risk of dismissal. The Committee recalls that making the return to work conditional on time limits and on the employer’s consent constitute obstacles to the effective exercise of the right to strike, essential for workers to promote and defend the interests of their members. The Committee therefore once again requests the Government to review the legislation, in full consultation with workers’ and employers’ organizations, 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.

Procedural requirements for industrial action. In its previous comment, the Committee had noted with concern that the expiration of the ballot mandate, coupled with the extensive notice requirements and the current context of a postal ballot, were likely to hinder the capacity of workers’ organizations to exercise their activities free from interference. Accordingly, it had requested the Government to provide information on the progress made to allow electronic balloting and to review the articulation of sections 8 and 9 of the Trade Union Act on timing and duration of industrial action. The Committee notes with concern that the Government does not consider it necessary to carry out a review of sections 8 and 9 of the Act as it is satisfied that the measures in place relating to 14 days’ notice to be given to employers of industrial action are reasonable, proportionate and based on a balanced approach. The Government states that it already extended the notice period from seven to 14 days to give the employer and trade union more time to negotiate a settlement of the dispute, and which may help parties to avoid industrial action. Furthermore, the Government affirms that the notice period of 14 days for industrial action gives time for the employer and public to prepare for a strike, if it proves unavoidable, which will enable some employers to find a way to continue providing their services to the public. With regard to section 9, the Government affirms that the aim of it is to ensure that employers will no longer be subject to strike threats for which the original balloting took place some years before, besides encouraging disputes to be resolved earlier and where possible via dialogue, and not industrial action. The Committee notes that the TUC once again raises its concerns about the 14-day strike notice established by the Act and refers to the conclusions of the European Social Rights Committee which found that the notice requirements are excessive. The Committee recalls that the notice requirement of 14 days for the taking of industrial action is to be added to the seven-day notice requirement for balloting, along with the time for carrying out the ballot, which at present remains a postal ballot. It further recalls TUC’s concerns that the ballot mandate is now declared to come to an end after six months, regardless of whether the dispute has been resolved, and that in order to continue industrial action, the balloting process will have to begin anew. According to the TUC, continuous industrial action would be complicated by the above notice requirements which, in its view, with a postal ballot, could take up to as much as 42 days meaning that the balloting process would have to begin again shortly after its conclusion. The Committee reiterates its position that workers and their organizations should be able to call a strike for an indefinite period if they so wish (see 2012 General Survey on the fundamental Conventions, paragraph 146). The Committee therefore once again asks the Government to review sections 8 and 9 of the Trade Union Act in consultation with the social partners, and to provide information on any developments in this regard.

The Committee had requested the Government to continue its dialogue with the social partners with respect to move from opting-out to opting-in by union members to contribute to political funds, following the modification of section 84 of the Trade Union and Labour Relations (Consolidation) Act 1992 to provide that from 1 March 2018 members cannot contribute to a political fund unless they have opted in, a requirement that is only applied to new union members, as existing members remain on the status of opted-in, unless they choose to opt out of their union’s political fund. The Committee takes due note of the Government’s indication that the modification aims to promote greater transparency and choice for union members. The Committee welcomes the Government’s affirmation that it continues to have regular dialogue with its social partners on matters of policy.