UNISON v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant is a trade union, with its registered address in London. It is represented before the Court by Mr J. Clinch, the applicant’s legal officer. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a union for public service employees. It has members employed with the University College Hospital (UCLH), which is a National Health Service (“NHS”) Trust. A substantial proportion of its members at UCLH are employed on terms and conditions of employment negotiated, primarily, at a national level and the applicant plays a leading role in those national negotiations. Collective negotiations on terms and conditions for most staff so employed within the NHS take place within the framework of the so-called “Whitley Councils”. There is a General Council which agrees terms and conditions common to all staff groups, for example, on redundancy, equal opportunities, maternity rights and joint consultation machinery and ten other specialist councils dealing with particular jobs or professions. Each Council is composed of an equal number of employer-side staff and staff-side employees. The applicant inter alia provides the employee-side secretariat of the General Whitley Council which means that it plays the leading role in co-ordinating staff-side policy within the General Council negotiations and in representing employees at those negotiations. During 1998, UCLH was negotiating to transfer a part or parts of its business to a transferee consortium of private companies, under a mechanism known as Private Finance Initiative, whereby the private companies would erect and run for UCLH a new hospital (the “primary transfer”). The consortium would subsequently transfer parts of the business transferred to it by UCLH to other private transferee companies (secondary transfers). Thereafter, there would be yet further transfers to private companies (tertiary and subsequent transfers). At all stages there was to be subcontracting out of parts of the work by transferee companies to specialist companies. The primary transfer and secondary transfers would involve most but not all the employees of UCLH being transferred to one or more of the transferee companies. The applicant sought protection of its members for the terms and conditions of employment and collective bargaining arrangements, aiming to secure a collective agreement with UCLH by which the latter would impose on the transferees terms that would guarantee for thirty years that the terms and conditions of employment and the collective bargaining arrangements of those who would be employed by the primary and subsequent transferees would remain the same as or equivalent to those which would remain for existing employees who were not transferred from UCLH. UCLH refused the request or to offer any protection of existing terms and conditions beyond those guaranteed as a minimum by law. The applicant put a question to its members in the statutorily required pre-strike ballot, asking whether they were prepared to take industrial action in support of the trade union’s demands for a guarantee. The ballot paper stated: “The union has requested a guarantee that the terms, conditions and benefits enjoyed by UCLH staff to be transferred to the new employer, and also staff, subsequently employed and subcontracted staff remain the same (or at least as favourable as), and governed by the same collective bargaining arrangement as HNS, UCLH Trust staff. The UCLH Trust has not agreed to give this guarantee by making it part of the contract with the new employers or by making it part of individual contracts of employment. The union is therefore in dispute with the UCLH NHS Trust. Are you prepared to take strike action in support of the request for the guarantee described above?” On 2 September 1998, it was announced that members had voted overwhelmingly to take strike action. The applicant called for the strike to take place on 21 September 1998. On 7 September 1998, UCLH brought proceedings applying for an injunction to prevent the strike taking place. On 17 September 1998, the High Court ordered interlocutory injunctive relief in favour of UCLH, finding that the strike did not attract the protection of section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act). On 13 October 1998, the Court of Appeal dismissed the applicant’s appeal, upheld the injunction and ordered costs against the applicant. It refused leave to appeal to the House of Lords. In its judgment, as summarised by the applicant, it was found: (i) that there was no dispute wholly or mainly related to current terms and conditions but instead a dispute about future terms and conditions with an unidentified future employer (Section 244 of the 1992 Act did not extend to such a dispute); (ii) the inclusion of future employees and sub-contracted employees in the demand for protection took the dispute outside section 244 of the 1992 Act; (iii) even if the dispute was mainly about statutorily permitted matters and between statutorily permitted parties, the ballot paper before the strike must be restricted wholly to statutorily permitted issues to be valid. In his judgment in the Court of Appeal, Lord Woolf M.R. noted that the applicant’s counsel had accepted that the arrangement which the applicant had sought to achieve would have been difficult to enforce in any event, though considered that the applicant could claim that the guarantee could have been of benefit to its members. While counsel had also conceded that any strike of hospital staff would, regrettably, have had an impact on persons being treated in the hospital, he held that the possible adverse consequences of a strike was not relevant to the court’s decision on the legal issue before it. On 26 April 1999, the House of Lords rejected the applicant’s petition for leave to appeal. The applicant withdrew the strike call to avoid acting unlawfully and being found liable for damages. A strike by employees involves breaches of their respective contracts of employment. Calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing the breach of contracts of the employees concerned. Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute”. Statutory protection is lost and the trade union is necessarily acting unlawfully if the strike it calls is in contemplation or furtherance of something which does not fall within the statutory definition of a “trade dispute”. The term “trade dispute” is defined by section 244 of the 1992 Act which provides as relevant: “(1) In this Part, ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following - (a) terms and conditions of employment or the physical conditions in which any workers are required to work; (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers; (c) the allocation of work or the duties or employment between workers or groups of workers; (d) matters of discipline; (e) a worker’s membership or non-membership of a trade union; (f) facilities for officials of trade unions; and (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of procedures.” Pursuant to The Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1081/1974), protection is provided to workers on (most) transfers of undertakings (these regulations implemented Council Directive No. 77/187/EEC). By regulation 5, a contract of employment of employees employed in an undertaking immediately before a relevant transfer are saved from automatic termination and “shall have effect after the transfer as if originally made between the person so employed and the transferee.” All rights, powers, duties and liabilities of the transferor are deemed to pass to the transferee (reg. 5(2)(a)), hence the transferee comes under an obligation to respect the terms and conditions of employment which have been agreed by the transferor. By virtue of reg. 5, employees whose contractual terms prior to transfer are expressly subject to collective negotiation, will continue to be subject to that collective negotiation following transfer, even if their new employer is not party to those negotiations (e.g. Whent and others v. T Cartledge Ltd [1997] IRLR 153(EAT)). Pursuant to reg. 6 of TUPE, the effect of any collective agreement made between a transferor employer and a trade union is preserved, and the agreement treated as if it had been made between the trade union and the new transferee employer. Recognition of a trade union by a transferor, whether for collective bargaining purposes or otherwise also binds a transferee where the undertaking transferred maintains an identity distinct from the remainder of the transferee’s undertaking (reg. 9). Pursuant to reg. 8(1), of TUPE, an employee who is dismissed because of a transfer or for a reason connected with it is deemed to have been unfairly dismissed, giving an automatic guaranteed claim for compensation and/or re-instatement or re-engagement under s. 94 of the Employment Rights Act 1996 (“ERA”). This is subject to the exception where the employee has been dismissed for “an economic, technical or organisational reason entailing changes in the work force” in which case the dismissal is not automatically unfair – reg. 8(2). Such dismissal may nevertheless be found unfair by an Employment Tribunal applying the ordinary principles set out in s. 98 of ERA. A dismissal may occur at the instigation of an employer or where an employee resigns having apprehended that there is to be, or has been, a fundamental breach of contracts by the employer or a substantial change of working conditions to his detriment (e.g. Rossiter v. Pendragon PLC [2001] IRLR 256). A proposal by an employer to effect a transfer also gives rise to an obligation to consult “appropriate representatives” of affected employees about, inter alia, the date of the transfer and the reasons for it, its legal, economic and social implications for affected employees, and the measures, if any which will be taken by the transferor and/or transferee employers in relation to those employees (reg. 10(2)). The appropriate representatives include representatives of a recognised trade union. Any reduction in wages paid by an employer must, with certain limited exceptions, be agreed in writing. If there is no written agreement, the employee will have a claim to the Employment Tribunal for unlawful deduction of wages under ss. 13-23 ERA. Any reduction in wages or downgrading in other terms or conditions which is not agreed will give rise to a claim for breach of contract of employment in the ordinary courts, or, if employment has ended, in the ordinary courts or in the Employment Tribunal. If an employee is dismissed for failing to agree to a change in contractual terms and conditions, he may bring a claim for unfair dismissal pursuant to s. 94 ERA. A claim for unfair dismissal may also be brought by an employee who resigns following a significant change to contractual terms and conditions (s. 95(1)(c) ERA). An employee dissatisfied with changes to terms and conditions may remain in his job and claim unfair dismissal, seeking compensation for the financial shortfall between the new terms and former terms of employment. Pursuant to TUPE, recognition of trade union and collective agreements would automatically transfer to transferee employers (regs. 6 and 9). Where following transfer a transferee company wished to terminate recognition of a trade union, domestic law provides a mechanism whereby such employers may be compelled to engage in collective bargaining on certain matters. Section 1 of the Employment Relations Act 1999 adds a new Schedule 1A to the 1992 Act, under which employers and trade unions are encouraged to agree upon recognition for collective bargaining and upon the consequences which should flow from recognition. In the absence of agreement, unions may, in certain circumstances, apply to the Central Arbitration Committee in order to secure compulsory recognition for the purposes of collective bargaining on pay, working hours and holidays. Certain conditions must be met if compulsory recognition is to be ordered, principally that the trade union can claim a minimum level of support amongst the workers it wishes to represent in collective bargaining (paragraphs 22 and 29(3) of the Schedule) and that no other trade union is already recognised as representing any of those workers (paragraph 35). The Schedule came into force on 6 June 2000.