Court of Appeal rejects human rights challenge to UK union recognition regime

Legal framework

Article 11 of the European Convention on Human Rights (ECHR) gives everyone a right of freedom of assembly and association, including the right to form and to join trade unions. It is given effect in the UK by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Schedule A1 to TULRCA provides a mechanism for trade unions to obtain statutory recognition from an employer.

Background

The Independent Workers Union of Great Britain (IWGB) applied to the Central Arbitration Committee (CAC) in 2017 for recognition in respect of around 70 workers employed at the University of London, out of its total workforce of around 4,000 workers. It sought recognition both from Cordant Security, the outsourcing company that employed the workers, and the University of London itself.

The CAC ruled that the application in respect of Cordant was inadmissible because it already recognised Unison. TULRCA provides (in paragraph 35 of Schedule A1) that recognition cannot be granted if another independent trade union is already recognised in respect of any of the workers in the proposed bargaining unit. This decision was subsequently upheld by the High Court (HC) and was then the subject of the appeal to the Court of Appeal (CA) – discussed below.

As regards the IWBG’s application in respect of the University of London, the CAC ruled that this was also inadmissible because it was not the workers’ employer. The HC upheld this decision, rejecting the notion that the right to collective bargaining must be exercisable with the entity which effectively controls the terms of employment. There were “relevant and sufficient reasons for limiting the right to compulsory collective bargaining to workers and their employers”. The HC also noted that there was no concept of a “de factoemployer” in the UK, and to construe TULRCA in that way would undermine employers’ freedom to organise their activities by outsourcing certain services. The IWGB’s initial appeal against this decision was dropped when the workers transferred from Cordant to the University of London under TUPE, following a ten-year campaign for their roles to be brought back “in-house”.

Court of Appeal’s decision

The CA noted that the IWGB’s case in respect of Cordant highlighted two conflicting viewpoints. The first was that unions such as the IWGB and Unison should be free to compete, not only to recruit members and represent them as individuals (e.g. in disciplinary hearings), but also to represent them in collective bargaining. Such competition would further the workforce’s interests by preventing incumbent unions from becoming complacent and taking their members for granted. The contrasting view was that stability and unity in collective bargaining were in the workforce’s interests, and a single union negotiating on its behalf was more likely to achieve positive results.

The CA recognised that there may be much to be said for both viewpoints, but parliament had opted for the latter by including in Schedule A1 a reference to "the desirability of avoiding small, fragmented bargaining units within an undertaking". Paragraph 35 of the Schedule reflected the same policy choice, and the intention of the legislation was to promote voluntary agreements between employers and independent unions. Such an approach was “clearly within the wide margin of appreciation” that parliament enjoyed when creating the statutory trade union recognition regime.

The CA concluded that, while the scheme was clearly suboptimal from the IWGB's viewpoint, that did not put the UK in breach of its obligations under the ECHR in circumstances where parliament had significant discretion to strike a fair balance between competing interests.

Implications

In 2017, the CA considered a similar case concerning Boots, in which a trade union’s application to the CAC had been ruled inadmissible because an employer already recognised a non-independent union under the terms of a “sweetheart agreement”. In that case, the CA rejected the insurgent union’s challenge to the compatibility of Schedule A1 with the ECHR because it contained a mechanism through which a worker could apply to the CAC for an order derecognising a non-independent trade union.

In the present case, the IWGB relied on the CA’s statement in the Boots judgment that paragraph 35 of Schedule A1 potentially imposed an “inhibition” on what would, but for the mechanism to derecognise a non-independent trade union, have otherwise been the union's right to seek compulsory collective bargaining. Notwithstanding this, the CA has now determined that, even in the context of two competing independent unions, paragraph 35 still does not necessarily amount to an unlawful inhibition on account of parliament’s significant discretion when formulating the statutory recognition regime.

This ruling does not, however put an end to uncertainty in this area. The CA admitted it had concerns that an insurgent union might be left with no remedy in the following hypothetical scenario:

• a workforce constituting a single bargaining unit
• all staff being represented by one independent trade union, recognised voluntarily by the employer
• that incumbent union losing the support of the workforce
• a majority of the workforce joining an insurgent union
• the employer refusing that insurgent union recognition.

The CA said it would wish to consider in future whether, in such circumstances, paragraph 35 of Schedule A1 would amount to a breach of the Article 11 rights of the insurgent union and its members, as the "desirability of avoiding small, fragmented bargaining units" would not be a relevant factor.

Overall, this decision will be welcomed by employers that invest in building a productive relationship with an independent trade union of which many of their employees are a member. In particular, it confirms that an insurgent union cannot target a small part of an existing bargaining unit with a view to winning sufficient support to disturb existing arrangements.

In contrast, employers that recognise an independent union which enjoys no real workforce support may not necessarily enjoy such protection. This is perhaps unsurprising considering that Schedule A1 emphasises the importance of the CAC “encouraging and promoting fair and efficient practices and arrangements in the workplace”. It is not yet clear exactly how little support a union would need to have for its existing recognition arrangements to be vulnerable to challenge, but employers seeking to avoid recognition of their employees’ chosen union are now on notice that this might lead to a protracted legal battle which might ultimately end in failure.

R (IWGB) v Secretary of State for Business, Energy & Industrial Strategy and others – judgment available here