The RMT union has failed in its bid to challenge the UK’s ban on secondary industrial action before the European Court of Human Rights. Last week’s judgment may however contain enough material to make the Government pause for thought before promoting any new legislation further restricting the right to strike.
It emerged that the UK is one of a small minority of EU countries to outlaw secondary action. But despite the UK’s positioning at the most restrictive end of the spectrum, the Court ruled that the Government was operating within its “margin of appreciation”. While Article 11 of the European Human Rights Convention was engaged, it concluded that the UK was on balance entitled to restrict the right to take industrial action in this way in order to protect the rights and freedoms of others.
This assessment was based on the particular facts of the reference, which involved a dispute back in 2009 where the RMT were representing a small group of employees at Hydrex who had been transferred under TUPE from Jarvis, a much larger rail engineering operation. It appears that the Court was unimpressed with the Union’s argument that a strike at Hydrex would have been far more effective had it also been able to call out its members still employed by Jarvis.
This is the first time that the European Court of Human Rights has ruled that right to call secondary action falls within Article 11, so the door to a further challenge remains open. It might be possible for a union to succeed on a more persuasive set of facts, particularly if any additional restrictions on the right to strike have been introduced in the meantime. This decision is therefore more likely to weigh on the side of preserving the status quo, rather than tempt a Government to go ahead with further measures to restrict the ability of unions to engage in industrial action.