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The UK’s laws on industrial action need an urgent rethink

Most people outside of the pharmaceutical industry will not have heard of the Pharmacists’ Defence Association Union which is in the middle of a long running legal battle with Boots the Chemist over the right to represent its pharmacists.  The union has submitted an application to the High Court for a declaration that UK law is incompatible with the European Convention on Human Rights.  The court has not yet determined their application but the union is already claiming that if it is successful, it will “deliver broader bargaining rights for all UK workers”.

Tom Flanagan examines the potential implications of this case and argues that, irrespective of the outcome, the UK should revisit its laws on industrial action and make them fit for the twenty first century.

Some years ago, the late Lord Denning, in what many thought of as a surprising statement for a senior judge, declared that the law should be ‘slow to interfere in the course of industrial relations’. The reality is that the context of industrial relations is inherently political. The law in this area is often extremely complicated, involving a series of statutes which, over the years, have been adding to, subtracting from, or amending a piece of legislation passed originally in 1980 – when economics, politics and law were extremely different to the present. It also involves a large volume of case law in the UK and Europe, as well as the interpretation of UK law in the light of the impact of European institutions.

The result is that industrial relations disputes are far too often played out in the legal arena, with unions going to law as much as employers, and coordinated campaigns taking place to achieve certain legal results.

In the Boots case, the PDAU were not able to persuade Boots to agree to voluntary recognition.  Boots already had a ‘partnership’ agreement with an in-house union and argued that the PDAU were not entitled to apply to the Central Arbitration Committee for statutory recognition because of a statutory provision which excluded applications from unions where there was an existing collective bargaining unit.

The difficulty here was that the in house union did not form a collective bargaining group for the
purposes of pay, hours, holidays or working conditions but did satisfy the statutory definition of a ‘collective agreement’ under TULRCA.

The CAC concluded that, under UK law, the agreement between Boots and its in house union was an existing collective agreement, so the PDAU’s application for recognition was inadmissible and must fail – unless there was some other route to render it admissible.  The route which the union argued would achieve that result was breach of Article 11 of the European Convention on Human Rights.  It argued that our legislation was incompatible with the right to ‘peaceful assembly and to freedom of association with others, including the right to join a trade union’.  The CAC agreed, and wrote into statute some words to give effect to its judgement.  Boots then applied to the High Court for a judicial review of the CAC’s decision, on the basis that it has no power to rewrite statute in this way.

Earlier this year, the High Court handed down its decision, in which it agreed with the CAC that an existing bargaining agreement should include at least pay, hours and holiday but found that the CAC did not have the authority to declare UK legislation to be incompatible.  The High Court itself could, however, declare that element of UK law to be incompatible, as long as the PDAU applied to it for such a declaration and informed the Crown of its intention to do so.

Against a deadline of 12 February 2014, the PDAU made this application just in time, but the outcome is not yet known.   Even if the High Court makes an order that UK law is incompatible with Article 11, the law in the UK will still have to be changed and that will still need primary legislation, going through Parliament in the usual way.

Is this a turning point in the law?

This is an interesting turning point in the UK’s law on industrial relations. Boots’ arguments about applications for recognition being inadmissible are not new and the basic position reflected an earlier case with similar facts, TGWU v Asda [2004]  in which I successfully supported the employer in establishing that an application for recognition was inadmissible.

The issues raised in the Boots case are more significant than the context of this case suggests. The unions have also argued that the UK law on industrial action ballots and, more fundamentally, the absence in UK law of a specific right to strike are incompatible with Article 11. A finding of incompatibility in this case is likely to embolden them and lead to further union-supported litigation.

Meanwhile, the government is considering changing the law on employees’ ability to strike in some sectors of the economy. It is also looking at introducing minimum requirements on the percentage of union members who must take part in a ballot or vote in favour of a strike, along with a range of other possible changes to the management of industrial action.

Taking the example of the recent tube strike, even if the ballot had a 40% turnout, then although there was a 76% vote in favour of action, this was just 30% of those entitled to vote. This is not to say that the other 70% must be taken to have voted against but they clearly did not vote in favour. There must be some argument that the enormous disruption which was caused to numerous stakeholders in a major capital city, with estimated losses to business of £50m per day, should not occur on the approval of less than a third of one relatively small stakeholder group. It is arguable that, in general, all rights should be accompanied by balancing obligations.  It is also arguable that a democratic society should be managed in the interests of all of its stakeholders.  Therefore, it would follow that certain industrial relations rights which affect society in general should be accompanied by an obligation to exercise those rights responsibly, in a way that takes into account their impact on others. That would, arguably, be completely consistent with Article 11 which allows some exceptions to the basic principle, including when the interests of other parties intervene.

Perhaps, to head off even more litigation, we need a rethink of the UK’s industrial relations law, if only to ensure that it reflects the needs of UK society rather than an EU position. Change in the way we manage industrial relations is now virtually inevitable, and it cannot happen without the involvement of politics and the law.

I suggest that the time is ripe to create a new way forward, with the major stakeholders in society agreeing a core set of principles and a new approach to implementing those principles, in light of the UK’s current economic, political and legal climate. This could involve using best practice from earlier law while breaking away from the cycle of tinkering with a legal regime which has passed its sell-by date.

- Tom Flanagan