ECHR Decisions Support Right To Strike and Collective Bargaining

Recent decisions by the European court of human rights may force the British government to protect strikers' rights

by Keith Ewing

Press reports suggest that a major sticking point to a settlement in the BA cabin crew dispute continues to be the company's refusal to restore staff travel perks. If true, this could (a) reveal an extraordinary lapse on the part of the company and (b) expose an extraordinary oversight on the part of the government in relation to its legal obligations.
Rewind to 12 November 2008. On that day the European court of human rights (ECHR) looked again at article 11 of the European convention on human rights. This is the provision that guarantees to workers throughout the Council of Europe the right to form and join trade unions for the protection of their interests. In a breathtaking piece of judicial activism, in Demir v Turkey the court held unanimously that article 11 has to be read widely and to include the right to collective bargaining.
Such a ruling does not, of course, directly affect the BA dispute; the cabin crew already have the right to bargain collectively, which is not in issue (despite the company's unilateral revocation of the travel benefits). Since Demir however, the court has applied the reasoning of that decision to industrial action, and in a number of complaints from Russia and Turkey has held that various restrictions on the right to strike are also a breach of article 11.
So in a case last year a number of Kaliningrad dockers successfully complained that they had been victimised for taking part in a lawful strike. The discrimination took the form of assigning less work to them, leading in turn to their discriminatory selection for redundancy. In several other cases from Turkey (also last year), the court upheld complaints where striking workers were subjected to punitive measures of various kinds, a complaint being upheld by the court in one case where a public servant was the subject of a disciplinary warning.
Don't be fooled by the fact that these are cases involving Turkey and Russia. This is case law of one of the world's most important courts that has a direct bearing on all 47 countries of the Council of Europe, affecting some 800 million people. The European court of human rights in these cases is establishing principles of general application that apply beyond the countries that were the source of the complaints. These principles appear to include the right to strike and the right to be protected when going on strike.
It is true that the court of appeal in England has refused to engage with this jurisprudence and that the rights in question may not yet be readily enforceable in the English courts. But unless these fast-moving developments are arrested, it may be possible for British – as well as Russian and Turkish – workers to complain to the Strasbourg court that their human rights have been violated. Any such complaint would be brought against the government, not the employer, for it is the legal responsibility of the government to ensure that treaty obligations are respected.
If this is correct, BA's refusal to reinstate travel benefits could have two important consequences. First, and most obviously, the BA cabin crew may be able to seek compensation in Strasbourg for the losses they have suffered as a result of the company's conduct. This means that the taxpayer would end up having to pay for the company's actions. But second, it means that British law may have to be changed in line with the emerging body of case law to enable British workers to enforce their human rights in the British courts.
In the case of the Russian dockers, the European court of human rights said clearly that it was "crucially important" that "individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and to have the right to take legal action to obtain damages and other relief". As a result, continued the court, governments "are required under the [European convention on human rights] to set up a judicial system [in their own countries] that would ensure real and effective protection against anti-union discrimination".
Under British law, workers have protection only from dismissal (for 12 weeks) when they take part in lawful industrial action. They have no statutory protection against punitive and vindictive action short of dismissal, such as the cutting of benefits that are claimed to be noncontractual. It would be a sweet irony indeed if one consequence of this bitter dispute was a decision of the European court of human rights that obliged Britain's new government to legislate to protect the human rights of strikers, in line with the stunning recent jurisprudence of the Strasbourg judges.