“There was a long legal battle and the Conservative government intervened, tinkering with the law to make it easier for employers to derecognise a union and remove the protections they afford.”
By Nina Reece, Trades Union Congress
Union members’ rights are under ferocious attack by bad employers like P&O Ferries and by a government intent on hindering workers’ ability to demand better pay and conditions.
This will look familiar to trade unionists David Wilson and Terence Palmer who, 20 years ago, defeated hostile bosses and a Tory government in a long-running case that made it to the European Court of Human Rights.
Their court victory is marked with the publication by the TUC of ‘Building Worker Power’, a collection of essays by leading lawyers, politicians and trade unionists. Their contributions outline the importance of the landmark Wilson and Palmer case, the challenges facing those fighting for union rights today and what modern collective rights would look like.
In 1989, Daily Mail journalist David Wilson received a letter from his employer: it was not going to renew its recognition agreement with the National Union of Journalists.
On top of this, any journalist who signed a contract of employment with the company before the agreement was due to end was given a 4.5 per cent pay rise.
Meanwhile, RMT member, Terence Palmer worked for the ports in Southampton.
His employer was also offering new contracts, this one coupled with a 10 per cent pay rise, on the condition that the workers would no longer be represented by his union, the RMT.
This was union busting, plain and simple. The employers were withdrawing from collective bargaining and offering workers bribes to enter into personal contracts. Anyone who chose to remain within the collective agreement was denied the increased pay. With the support of their unions, Wilson and Palmer took their cases to industrial tribunal. They argued that the actions of their employers violated their rights: “the right to form and join trade unions for the protection of [one’s] interests”, an aspect of freedom of association protected under article 11 of the European Convention on Human Rights (ECHR).
In his essay, Professor Keith Ewing reflects that this was not easy. There was a long legal battle and the Conservative government intervened, tinkering with the law to make it easier for employers to derecognise a union and remove the protections they afford.
Eventually, the European Court of Human Rights (ECtHR) held that by permitting employers to discriminate against trade unionists, British law had violated the ECHR.
In response to the 2002 ECtHR ruling, Section 145b of the Trade Union and Labour Relations (Consolidation) Act (TULRA) was established by a new Labour government. This meant that union members now had the right to not receive employer offers which, if accepted, would stop their terms and conditions from being determined by collective bargaining.
David Wilson and Terence Palmer had won and the law had been changed. But this ruling had even further reaching consequences.
In their essay, barristers Michael Ford QC and Stuart Brittenden show how in 2021, Section14b of TULRA was used again, when Unite members Dunkley and others won against Kostal UK Ltd at Supreme Court to establish that bosses can’t just ignore recognition agreements then claim that, even if they had ignored the collective procedures, they could not be penalised as they had not decided to do so permanently.
Today, labour activists and law defenders continue the fight for our right to trade union activities.
UNISON’s Shantha David, and Thompsons’ Rachel Halliday show in their essays that government attempts to undermine human rights principles in UK law could make it far harder to advance collective rights.
The proposed Bill of Rights would weaken the government’s obligation to ensure UK law reflects our convention rights and could leave workers with no choice but to challenge attacks on those rights at the ECtHR in Strasbourg, a costly and complicated process.
New plans have also been announced to allow agencies to supply workers to perform the duties of employees who are on strike, making it harder for working people to organise collectively and defend their jobs.
In her foreword, Labour’s Angela Rayner makes a positive point: progress can be made by strong union organising and a robust legal strategy.
The Wilson and Palmer case proves that workers and our unions can win. We need to be just as determined as they were.
Download ‘Building Worker Power: Essays on collective rights 20 years after the Wilson and Palmer case established the right to be represented by a trade union’ here.
- Nina Reece is a Policy & Campaigns Support Officer in the Rights, International, Social and Economics department at the Trades Union Congress (TUC).
- This article was originally published by the TUC on July 19th, 2022.