CASE OF ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN (ASLEF) v. THE UNITED KINGDOM
Preliminary objection dismissed (non-exhaustion);Violation of Art. 11;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Josep Casadevall;Nicolas Bratza
5. The applicant is a trade union, representing mainly train drivers on the United Kingdom's railways. Founded in 1880, it has some 18,000 members and most train drivers are members of ASLEF. It is an independent trade union. The various companies on the United Kingdom rail network do not operate a “closed shop” and railway workers, including drivers, are free to join ASLEF or other unions or not to join a union at all. 6. Its Rules provide that its objects include, as well as regulating relations between workers and employers and protecting the welfare of members and the industry, that it “assist in the furtherance of the labour movement generally towards a Socialist society (Rule 3.1(vii) and to “promote and develop and enact positive policies in regard to equality of treatment in our industries and ASLEF regardless of sex, sexual orientation, marital status, religion, creed, colour, race or ethnic origin” (Rule 3.1(viii)). 7. In 1978 the Annual Assembly of Delegates(“AAD”) of ASLEF, its governing body, resolved, pursuant to rule 14(a) of ASLEF rules, that "this AAD being concerned with the rise of Fascist activists and groups instruct the Executive Committee to campaign vigorously to expose the obnoxious policies of political parties such as the National Front." 8. In February 2002, a Mr Lee (a member of the far-right, lawful, British National Party ('BNP'), previously known as the National Front) applied for membership in ASLEF and was accepted. In April 2002 Mr Lee stood as a candidate in the local elections in Bexley for the BNP. 9. On 17 April 2002 an ASLEF trade union officer sent a report to the General Secretary concerning Mr Lee, attaching information that Mr Lee was an activist in the BNP, had handed out anti-Islamic leaflets dressed as a priest and that in 1998 he had stood as a candidate for the BNP in Newham. The report included an article written by Mr Lee for Spearhead (the BNP magazine) and a fax from Bexley Council for Racial Equality stating that Mr Lee had seriously harassed Anti-Nazi League pamphleteers, including taking pictures of them, taking their car numbers, making throat-cutting gestures and following one woman in his car and visibly noting her home address, which matters had been reported to the police. 10. On 19 April 2002, an Executive Committee meeting of ASLEF voted unanimously to expel Mr Lee, who was so informed by a letter of 24 April 2002, which stated that his membership of the BNP was incompatible with membership with ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union. 11. Mr Lee appealed against the expulsion and was informed that a hearing would take place on 13 March 2003. On 20 February 2003, he stated that he would not attend. On 13 March 2003, the Appeals Committee of ASLEF met and rejected his appeal. 12. On 18 May 2002, AAD resolved "that membership of the BNP or similar Fascist organisation is incompatible with being a member of ASLEF as determined under Rule 5-Objects. Therefore any members of BNP who are members of, or apply for membership, of ASLEF shall be removed from membership or refused membership." The rules were changed accordingly to read: Rule 4.1(d): “No person shall be admitted into membership of ASLEF if by choice they are members of, supporters of, or sympathisers with, organisations which are diametrically opposed to the objects of the union, such as a fascist organisation.” 13. In the meantime, Mr Lee had brought proceedings in the Employment Tribunals ('ET') in respect of his expulsion, on the basis of section 174 Trade Union and Labour Relations (Consolidation) Act 1992 ('section 174'), which prohibits trade unions from excluding a person or expelling a member wholly or to any extent on the ground that the individual is or was a member of a political party. The ET found in favour of Mr Lee on 21 May 2003. The applicant appealed to the Employment Appeal Tribunal ('EAT'), which on 10 March 2004 found that the first ET had fallen into serious errors of law, quashed the decision and remitted it to a second ET. 14. The EAT considered that it could construe section 174 without the need to resort to Article 11. It noted the parties' submissions, including the applicant's reliance on the decision in Cheall v. the United Kingdom (no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, p. 178) and continued: “As we have indicated [counsel for the applicant] accepts that we are not in a position to grant a declaration of incompatibility, on the one hand... But it is also clear to us that the very existence of competing claims under Article 11 (albeit that it would seem to us, on the authorities, that, absent a case of prejudice to livelihood, in this case [the applicant's] right of negative association for the Union and its members would seem likely to override the asserted right of association of [Mr Lee]) renders it more appropriate for us to seek to resolve the construction of the statute without reference to those competing rights. [Counsel for the applicant], while reserving his position, does not dissent from that course, and [counsel for Mr Lee] said that he understood, and indeed accepted that it was thereby being assumed in [his favour] that there is at least arguable an Article 11 right, such as he asserts.” 15. The EAT's conclusion on the meaning of section 174 was that a union could rely as a legitimate ground for expulsion on the conduct of the expelled member so long as that conduct was not the fact of being a member of a political party. It found that a union could not rely on conduct which was a “necessary act for the purpose of being or continuing to be a member” (at paragraph 29 of its judgment). It specifically rejected the submission advanced by the applicant that included in the concept of membership (and thus amounting to conduct on which the union was not permitted to rely) was conduct as a member, or in the capacity as a member, of a political party (paragraph 28.5 of the EAT judgment). 16. A second ET again upheld Mr Lee's complaint by way of decision promulgated on 6 October 2004. It rejected the applicant's defence that Mr Lee's expulsion was entirely attributable to his conduct (apart from the fact of membership of the BNP) for the purpose of section 174, holding that the expulsion was “primarily because of his membership of the BNP” (paragraph 25 of its judgment). 17. The applicant did not appeal to the EAT against the second decision of the ET. 18. In consequence of the second decision of the ET, the applicant has been obliged to re-admit Mr Lee to the membership of the Union. It is in breach of its own Rules in so doing. Had the applicant not re-admitted Mr Lee, it would have been liable to pay him compensation in such sum as the ET considered just and equitable (subject to a statutory minimum of, currently, just over 8,600 euros (EUR), with no upper limit). Even though it has re-admitted Mr Lee, the applicant remains exposed to an application from Mr Lee for compensation in such sum as the ET considers just and equitable but subject to an upper limit of around EUR 94,200. It does not appear that Mr Lee has made any such application. 19. Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 reads in relevant part: (1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section. (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) – ... (d) the exclusion or expulsion is entirely attributable to his conduct. ... (3) For purposes of subsection 2(d) 'conduct,' in relation to an individual, does not include – (a) his being or ceasing to be, or having been or ceased to be - (...) (iii) a member of a political party, or ...” 20. Subsequent to the decision of the second ET in Mr Lee's case, section 174 was amended (with effect from 31 December 2004) to read as follows (again in material part only): “(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section. (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) – (...) (d) the exclusion or expulsion is entirely attributable to conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct. ... (3) For purposes of subsection (2)(d) “excluded conduct,” in relation to an individual, means – (a) conduct which consists in his being or ceasing to, or having been or ceased to be, a member of another trade union (b) conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or (c) conduct to which section 65 (conduct for which an employer may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union. (4A) For the purposes of subsection (2)(d) “protected conduct” is conduct which consists in the individual's being or ceasing to be, or having been or ceased to be, a member of a political party. (4B) conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A). ..” 21. Section 177(1)(b) provides that “'conduct' includes statements, acts and omissions.” 22. Article 5 of European Social Charter 1961 provides for the following “right to organise”: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 23. In that context, the European Committee of Social Rights of the Council of Europe (formerly the “Committee of Independent Experts”, which is the supervisory body of the European Social Charter 1961 has given consideration on numerous occasions to sections 174-177 of the 1992 Act. Concern with the interference by section 174 in the right of trade unions to fix their own rules and choose their own members was expressed by the Committee in Conclusions XIII-3, p. 109; Conclusions XV-1 p. 629; and in November 2002, Conclusions XVI-1, p. 684 where it held: “Section 174 of the 1992 Act limits the grounds on which a person may be refused admission to or expelled from a trade union to such an extent as to constitute an excessive restriction on the rights of a trade union to determine its conditions for membership and goes beyond what is required to secure the individual right to join a trade union....The Committee concludes that, in light of the provisions of the Trade Union and Labour Relations (Consolidation Act) 1992 referred to above (sections 15, 65, 174 and 226A) the situation in the United Kingdom is not in conformity with Article 5 of the Charter” 24. In Conclusions XVII-1 (2004) it again concluded that the United Kingdom was not in conformity with Article 5 of the Charter as section 174 constituted an excessive restriction on trade unions' right to determine their membership conditions. 25. The (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) provides, inter alia: “Part I. Freedom of Association ... Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”