In what has been an aggressive and unrelenting litigation strategy against trade unions, big employers have drawn blood in the courts, and lots of it. Encouraged by the court of appeal’s recent dictum that ‘in this country the right to strike has never been much more than a slogan or a legal metaphor’, they have won injunction after injunction, fatally wounding trade union activity, in case after case.
The current employer offensive began with the injunction in 2008 against Unite, in a dispute involving London bus workers. The union had informed the firm Metrobus of its strike ballot result two days later than the law required, and an injunction was granted – even though the delay caused neither loss nor inconvenience to the company.
This was before the BA cabin crew dispute produced the best known in an unprecedented wave of injunctions. Unite was on the receiving end there too, being stopped from taking action supported by more than 92 per cent of those voting in an 80 per cent turnout. The union was injuncted for mistakenly balloting some members who would not be taking part in the dispute (and whose involvement did not affect the result).
A fresh ballot was held, again producing an overwhelming majority on a high turnout. This time BA complained that the union had failed to notify its members of the full ballot result. Remarkably, the high court granted a second injunction, until a measure of sanity was restored on appeal, albeit by a tense 2:1 majority.
This litigation – along with other recent examples in the same vein – is all the more remarkable for the fact that the European Court of Human Rights in Strasbourg held in April 2009 that the right to strike is now protected by the European Convention on Human Rights. These rights are now supposed to be enforceable in the domestic courts, following New Labour’s flagship Human Rights Act (HRA).
But both the high court and the court of appeal refused to apply the Strasbourg court rulings on the right to strike, and in the recent court cases against unions refused to require English law to be read consistently with convention rights as the HRA demands.
So in yet another case of an injunction being granted on silly grounds, the RMT union has had to mount a challenge in Europe to defend its rights. In their case the union was stopped from taking action against electricity supplier EDF, after informing the company that it was proposing to ballot its engineer/technician members.
According to the high court, the union should have given more detailed information before the ballot, identifying the ‘fitters, jointers, test room inspectors, day testers, shift testers, or OLBI fitters’, as the employer demanded.
Similar action in Strasbourg is being contemplated by the NUJ, stopped from conducting a dispute about health and safety matters against Johnson Press on the grounds that it is a holding company, not the employer of union members. This is despite the fact that the Johnson Press stamp appears on the pay slips of all employees working on its titles.
These decisions reflect an unholy alliance between an unpleasant group of union-busting lawyers and a court system willing to encourage loopholes in what one judge referred to as ‘the inordinate complexity of the statutory procedures’. So much for the Human Rights Act, now barely a tattered rag in the hands of the English judges.
While this pantomime has been played out in the courts, the Tory-Liberal coalition has boasted that it will introduce a Freedom Bill, a bonfire of all the restrictions on liberty introduced by the New Labour government. While welcome, it remains to be seen if this bill will include a removal of the restraints on trade union freedom introduced by the Thatcher and Major governments, which New Labour was happy to retain.
We will soon find out. The coalition now has what may be an unwelcome opportunity to reflect on these matters. Labour backbencher John McDonnell came top of the MP’s ballot for private members’ bills, and on 22 October he will introduce his Lawful Industrial Action (Minor Errors) Bill into the House of Commons.
The conduct of the coalition in that debate, and its willingness to support this extremely modest measure to address the worst features of the current law, will be a revealing indication of the partisan nature of the government’s commitment to freedom, civil liberties and human rights. The response of the new Labour leadership will be equally revealing.
Keith Ewing is president of the Institute of Employment Rights and professor of public law at King’s College London