The Court of Appeal has dismissed a challenge to the statutory union recognition procedures, which allow an employer’s existing relationship with a “sweetheart union” to block a recognition bid from an independent union.
The trade union PDAU had argued that in devising these procedures, the Government had failed to guarantee the freedom of association rights set out in Article 11 of the European Human Rights Convention.
The union’s case was that it could not be right that Boots could enter a “token recognition agreement” with a “tame in-house union” in order to avoid having to deal with an independent union. It was particularly concerned about the limited nature of the recognition agreement with the in-house union, which excluded negotiations on terms and conditions and most other matters specified in the definition of collective bargaining in the relevant legislation.
The Court of Appeal dismissed the claim. It considered that while the features complained of were indeed built into the statutory recognition procedures, they were balanced by a right given to individual union members (though not the independent union itself) to trigger the process of de-recognising the in-house union in such circumstances. That could the pave the way for a further bid for recognition by the independent trade union.
While alternative union recognition procedures could no doubt have been devised, the Court of Appeal considered that Article 11 could not be used as a tool to challenge “this or that sub-optimal element” in a scheme, provided that the court was satisfied that a fair balance had been struck between competing interests.
While there are very few union recognition disputes that reach the Court of Appeal, this case is of wider interest because of its observations on the extent of a state’s “margin of appreciation” when it comes to enacting legislation falling within the scope of Article 11. This of course includes the new rules on industrial action ballots which come into effect next week (see our posting here for more details).
Although similar challenges to the balloting requirements in the UK have failed in the past, there is a widely held view that this latest, even stricter variant, is more likely to be in beach of Article 11. Our understanding, however, is that the Government is confident that it can see off any such challenge, and its lawyers will find some support for their position in the reasoning adopted by the Court of Appeal in this latest decision.