Informe definitivo - Informe núm. 277, Marzo 1991

1. 47. By a communication dated 29 June 1990 the National Union of Seamen (NUS) presented a complaint against the Government of the United Kingdom alleging violations of trade union rights. The Government sent its observations on those allegations in a communication of 16 January 1991.
2. 48. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The legislative context

1. 49. At common law strikes and most other forms of industrial action would constitute repudiatory breaches of the contracts of employment of the workers concerned. This means that, in principle, the employer could elect to treat the employment relationship as at an end without more ado. This rarely happens in practice. But it is not unusual, especially in the event of protracted disputes, for employers formally to notify striking workers that if they do not return to work by a specified date their employment will be regarded as terminated (in technical terms, this means that the employer "accepts" the "repudiatory breach" as terminating the contract). So far as the common law is concerned, an employer who exercised this option would be acting entirely within its legal rights.
2. 50. The Industrial Relations Act, 1971 introduced the concept of "unfair dismissal" into British law for the first time. In simple terms, this legislation gave employees the right not to be "unfairly dismissed" by their employer. These protections were carried over into the Trade Union and Labour Relations Act, 1974, and are now to be found in the Employment Protection (Consolidation) Act, 1978 (EPCA), as amended.
3. 51. Section 26 of the 1971 Act provided that where the reason or principal reason for a dismissal was the fact that an employee had taken part in a strike or other industrial action that dismissal was not to be regarded as "unfair" unless it was shown either that one or more employees of the same employer who also took part in the strike were not dismissed for taking part in it, or that one or more employees who were dismissed for taking part in it were offered re-engagement on the termination of the industrial action and that the complainant employee had not been offered such re-engagement. In other words, if all of those who participated in a strike or other industrial action were dismissed, and not offered re-engagement, then those employees could not claim to have been unfairly dismissed within the terms of the legislation. However, if some participants in the strike or other industrial action were not dismissed, or were offered re-engagement having been dismissed, then those who were dismissed and who were not offered re-engagement could bring a claim for unfair dismissal. Section 25 of the Act provided a measure of protection for employees who were not offered re-engagement on the termination of a lock-out.
4. 52. Sections 25 and 26 of the 1971 Act formed the basis of section 62 of the EPCA which, as amended, remains in force.
5. 53. Section 62 was amended by section 9 of the Employment Act, 1982:
6. - first, by providing that dismissed employees could establish discriminatory re-engagement only if one or more other workers had been offered re-engagement within three months of the date of the complainant's dismissal; and
7. - secondly, by providing that the group by reference to which discriminatory treatment could be established were those who were on strike at the date of the complainant's dismissal.
8. The effect of the first of these amendments was that discriminatory re-engagement was permissible, so long as the employer waited for three months after the dismissals before offering re-engagement to any of the strikers. The effect of the second amendment was to ensure that strikers who had returned to work during a strike could not be used as a reference group for workers who were subsequently dismissed for participating in that strike.
9. 54. The 1978 Act was further amended by section 9 of the Employment Act, 1990 which inserted a new provision, section 62A, immediately after section 62. The purpose of this amendment was to withdraw the protection afforded by section 62 from workers who were dismissed because of their participation in an "unofficial strike or other unofficial industrial action". According to section 62A(2):
10. A strike or other industrial action is unofficial in relation to an employee unless -
11. (a) he is a member of a trade union and the action is authorised or endorsed by that union; or
12. (b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.
13. Provided that a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.
14. 55. The insertion of section 62A also necessitated consequential amendment to section 62. The relevant portions of that section now state:
15. (1) The provisions of this section shall have effect in relation to an employee (the complainant) who claims that he has been unfairly dismissed by his employer where at the date of dismissal -
16. (a) the employer was conducting or instituting a lock-out; or
17. (b) the complainant was taking part in a strike or other industrial action.
18. (2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -
19. (a) that one or more relevant employees of the same employer have not been dismissed, or
20. (b) that any such employee has, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.
21. ...
22. (4) In this section -
23. (a) "date of dismissal" means -
24. (i) where the employee's contract of employment was terminated by notice, the date on which the employer's notice was given; and
25. (ii) in any other case, the effective date of termination;
26. (b) "relevant employees" means -
27. (i) in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred; and
28. (ii) in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant's date of dismissal;
29. "establishment", in sub-paragraph (ii) meaning that establishment of the employer at or from which the complainant works; and
30. (c) any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.
31. (5) The provisions of this section do not apply to an employee who by virtue of section 62A below has no right to complain of unfair dismissal; but nothing in that section affects the question of who are relevant employees in relation to an employee to whom the provisions of this section do apply.
32. B. The complainant's allegations
33. 56. By its communication of 29 June 1990 the NUS seeks "a declaration that section 62 of the Employment Protection (Consolidation) Act, 1978, and amending legislation, is contrary to the Conventions and principles of the ILO and should be so condemned". It bases its criticisms of section 62 on the dismissal of 2,000 of its members in consequence of a dispute with one of the principal cross-channel ferry operators, P & O European Ferries (Dover), in 1987 and 1988.
34. The dispute
35. 57. In December 1987 the company initiated discussions with the union in relation to the need to reorganise its operations in order to enable it to compete with the channel tunnel which was due to open in 1993. The union agreed to participate in these discussions on the basis of "grievance procedures", which had been agreed with the company in 1986.
36. 58. On 4 December 1987, with no prior warning, and in total disregard of the grievance procedures, the company sent a letter to all employees advising them that there were to be significant revisions to existing collective agreements in order to achieve substantial reductions in labour costs whilst maintaining high standards of safety and operational efficiency. The letter gave three months' notice of this intention and set out three major objectives inviting comment upon them.
37. 59. On 9 December 1987 the NUS responded expressing concern at the haste with which the company seemed to intend to bring in the changes. Further, on 11 December the NUS General Secretary wrote to P & O requesting that the 4 December notice be withdrawn so that open-ended discussions could take place. In mid-December 1987 preliminary discussions took place between the parties in relation to the three months' notice, without any resolution being reached.
38. 60. In mid-January 1988 all NUS members were balloted as to whether negotiations should take place. The result of the ballot was in favour of negotiations. Meetings between the company and the NUS continued throughout January with little progress being made.
39. 61. On 1 February 1988 despite an assurance from the NUS Local Branch Secretary that the members would not take action in support of an unrelated dispute between the NUS and another shipping company (the Isle of Man Steam Packet Company) P & O obtained injunctions restraining the union and its officials from inducing secondary action in support of NUS members in dispute with the Isle of Man Steam Packet Company. On 2 February, during the course of a meeting between the negotiating committee and the company, P & O notified all concerned of the injunctions and served them upon those respondents who were present at the meeting. Negotiations broke down and a ballot for strike action was taken resulting in an overwhelming majority in favour of such action. From 3 and 4 February 1988 there was a stoppage of work on the basis that due to the company's attitude negotiations had broken down. Some 2,000 members of the union were involved in this stoppage.
40. 62. Negotiations for a return to work were entered into and continued until March with no success. On 15 March the company sent letters of dismissal to all ratings (i.e. seafarers) whilst at the same time offering re-employment on new terms and conditions drastically different from those currently in force. These terms became known as the "blue book". All ratings were given one week (until 23 March) to accept the new terms. In the meantime the independent Advisory Conciliation and Arbitration Service became involved and further negotiations took place with the result that the blue book proposals were withdrawn and new proposals known as the "red book" were drawn up.
41. 63. On 14 April 1988 the red book terms were circulated to all ratings and were open for acceptance until 20 April. The majority of the NUS members had not accepted the red book offer by the deadline and on 25 April P & O began sending out dismissal papers to employees.
42. 64. Throughout the month of June the company, following an extensive recruiting campaign of non-union labour, began to recommence the sailing of its various ferries while the official dispute and action continued. There was a gradual drift back to work of a minority of NUS members over the following months, during which time the company had resigned from the British Shipping Federation (which is the principal employer body for the industry). It had continued to recruit non-union labour, and had withdrawn NUS recognition for purposes of collective bargaining. The dispute between the union members and P & O was formally ended by the union on 9 June 1989.
43. 65. According to the complainant, around 800 of the 2,000 workers who were dismissed in April 1988 had subsequently accepted the new terms and conditions offered by the company. The union had lodged unfair dismissal complaints on behalf of 1,025 of the approximately 1,200 members who had not been re-engaged.
44. 66. The first of these cases to proceed to hearing involved a Mr. Byrne. In the course of preliminary argument the company argued that they had dismissed all of the striking employees, so that the industrial tribunal had no jurisdiction to hear the claim because of the effect of section 62(2)(a) of the EPCA. Mr. Byrne alleged that one "relevant employee" had not been dismissed. The company then asked that the employee in question be identified. Mr. Byrne refused to do so on the ground that the employer might then dismiss the individual concerned, thereby bringing itself within section 62(2)(a). Both the industrial tribunal and the Employment Appeal Tribunal ruled that the employer was not entitled to know the identity of the "relevant employee". This decision was reversed by the Court of Appeal, and Mr. Byrne was refused leave to appeal to the House of Lords. According to the complainant the effect of the decision of the Court of Appeal was that the company would be entitled at any time up to the conclusion of the hearing to ascertain the identity of the "relevant employee", whom it could then dismiss, and avail itself of the protection of section 62(2)(a). Although the complainant's communication is not entirely clear on this point, it appears that in the light of this ruling the union concluded that no useful purpose would be served by proceeding with their claims under the EPCA, and decided instead to bring the matter to the ILO.
45. The specific allegations
46. 67. The complainant alleges that section 62 of the EPCA denies "due process of the law" to workers who are dismissed whilst taking industrial action. It therefore undermines the right to strike, and in consequence must be regarded as incompatible with the principles of freedom of association.
47. 68. The 1982 amendments to section 62 are criticised on the grounds: (i) that they permit the employer to dismiss all workers who remain on strike even though some of their colleagues have returned to work. According to the complainant, this encourages employers to issue ultimata in situations such as that which arose in the P & O dispute; and (ii) the fact that selective re-engagement enables employees who have not been re-engaged to claim for unfair dismissal only if the re-engaged employees are taken back within three months of the dismissal.
48. 69. The complainant also alleges that the proposals set out in the Employment Bill, 1989 which was then before the Parliament (now the Employment Act, 1990) would further erode such limited protection as was provided by section 62 of the EPCA by the addition of a new section 62A. These proposals were considered to be objectionable: (i) because they denied any protection against unfair dismissal to those who were dismissed because of their participation in "unofficial" strikes or other industrial action; (ii) because the question of whether action was "official" or "unofficial" was to be determined by reference to the facts at the time of the dismissal (section 62A(4)). The complainant considers that this would "give rise to discretionary decisions by tribunals with no possibility of challenge on appeal"; (iii) because they interfered with trade union autonomy by creating a (rebuttable) presumption that industrial action had been authorised by a trade union in circumstances where it had been authorised by a lay official of that union, or by any group of persons of which an official of the union was a member (section 62A(3)); and (iv) because it withheld protection against common law actions for damages and injunctions from industrial action taken wholly or in part to protest selective dismissals under section 62A (section 9(2) of the 1990 Act).
49. 70. In support of its allegations, the complainant makes detailed reference to: (i) past decisions of the Committee, as noted in the Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985; (ii) ILO standard-setting instruments, including Conventions Nos. 87 and 98, and the Termination of Employment at the Initiative of the Employer Convention, 1981 (No. 158); (iii) criticisms of section 62 by the Committee of Experts on the Application of Conventions and Recommendations in 1989 (International Labour Conference, 76th Session, 1989, Report III (Part 4A), p. 240); and (iv) a number of international instruments concerning human rights including the Universal Declaration of Human Rights, 1948, the European Convention on Human Rights, 1950, the European Social Charter, 1961 and the International Covenant on Economic, Social and Cultural Rights, 1966.
50. C. The Government's reply
51. 71. In its reply the Government states that it does not believe that anything in its general employment legislation - including section 62 and the related provisions of what is now the 1990 Employment Act - is incompatible with the guarantees afforded by ILO Conventions ratified by the United Kingdom. The Government is convinced that the NUS's claim of such incompatibility is unfounded, and submits that the complaint should be rejected by the Committee.
52. The dispute
53. 72. The Government considers that the account of the dispute between NUS members and P & O is both one-sided and incomplete, and goes on to correct what it considers to be imbalances or omissions in that account. It is, for example, necessary to take account of the perceptions and motivations of the employer in relation to the matters which gave rise to the dispute. It is also important to bear in mind that the union and its members had freely chosen to engage in industrial action against P & O. They were perfectly entitled to do this. But they did have other options available to them. For example, the individual seamen could have resigned in the face of what they considered to be their employer's attempt unilaterally to change their terms and conditions of employment, and then have claimed that they had been "constructively dismissed" within the terms of the EPCA.
54. 73. The Government also points out that the grievance procedures which were agreed between the NUS and the company were not legally enforceable as between the parties. It follows that the employer was not acting unlawfully in declining to adhere to the terms of those agreements. Similarly, the union would not have been acting unlawfully had it chosen to disregard the terms of the agreements. There is, therefore, "no reason why, in the circumstances, the union should have expected the employer to act as if the terms of the agreements were legally binding - especially if prevailing circumstances changed - but the complaint implies that this would have been a realistic assumption".
55. 74. The Government observes that at first sight the complainant's reference to the employer's decision to seek an injunction to restrain unlawful "secondary" action appears to be irrelevant to the matter in hand. However, the complainant's later statement to the effect that the strike action had occurred "on the basis that due to the company's attitude negotiations had broken down" (the Government's emphasis) suggests to the Government that the principal reason for the strike action was that the employer had exercised its right to restrain potential breaches of the law of the land in connection with a different dispute.
56. Section 62 of the EPCA
57. 75. As regards the general effect of section 62, the Government refers to its response to the 1989 observations of the Committee of Experts on the Application of Conventions and Recommendations in relation to section 62. (These observations had also been communicated to the Committee on Freedom of Association on 2 October 1989 in connection with Case No. 1439 (United Kingdom). (This complaint was withdrawn before it had been fully examined by the Committee - see 268th Report of the Committee, approved by the Governing Body at its 244th Session, November 1989, paragraph 9.) In particular, it points out that the law in the United Kingdom does provide some protection against dismissal for those who take or organise industrial action, but that there are many, and substantial, differences between the structure of British labour law and that of other countries - for example: (i) British law specifically prevents a court ordering any striking employee, in any circumstances, to honour his contract of employment and return to work (section 16 of the Trade Union and Labour Relations Act, 1974). This applies even in situations which may be regarded as involving "the safety of the State" or "a state of siege". (ii) Statutory protection ("immunity") is available against legal proceedings which could otherwise be brought by employers or others to prevent or penalise a call to take industrial action which interferes with the performance of contracts (under section 13 of the 1974 Act). This protection is available regardlesss of whether the effects of the action are, or are not, in proportion to the nature of the claim or the issue in dispute; and (iii) British law has never included the concept that a worker taking industrial action should have some form of special protection from the consequences that may follow therefrom.
58. 76. As to the complainant's specific allegations relating to section 62, the Government states that:
59. (i) It does not accept that the 1982 amendments had the effect of encouraging employers to issue ultimata to workers who remain on strike after some workers have returned to work. It is entirely a matter for the employer to decide how to respond to particular events or actions in the context of an industrial dispute. This decision must be taken by reference not only to the relevant legislation, but also to the possible practical, economic and industrial consequences thereof.
60. (ii) By virtue of section 62 a complaint relating to the dismissal of an employee while taking industrial action in the P & O dispute could not be entertained by a tribunal unless the employer had failed to dismiss one or more of the other employees taking that action. In the view of the UK Government, the Court of Appeal judgement in P & O European Ferries (Dover) Ltd. v. Byrne simply follows from that principle. In particular, it must be right that, where there is an allegation that the employer has not dismissed one such employee, the employer is entitled to particulars of the allegation. If the employer then dismisses that remaining employee it may well face a complaint of unfair dismissal from that employee; but not to permit any such dismissal would put an unreasonable restraint on an employer's ability to decide whether to retain or dismiss any particular employee or employees.
61. (iii) Section 62 does not apply to dismissals that occur before or after industrial action. An employee who is dismissed for contemplating industrial action is able to complain of unfair dismissal, as is an employee who is dismissed after returning to work.
62. (iv) It agrees with the complainant that the assumptions which underpin section 62 are that the resolution of industrial disputes is best left to the parties themselves, and that courts and tribunals should not pass judgement on the substantive merits of disputes. It is right and proper, therefore, that section 62 does not take any account of whether the industrial action which resulted in the dismissal or failure to re-engage was reasonable or otherwise.
63. 77. The Government does not believe that the various non-ILO treaties and Conventions referred to by the complainant are relevant to the Committee's consideration of this case. It then goes on to supply a detailed rebuttal of the complainant's arguments based on Articles 2, 3 and 8 of Convention No. 87, Article 1 of Convention No. 98 and Articles 4 and 8 of Convention No. 158. It also rejects the complainant's arguments based on past decisions of the Committee as noted in the Digest.
64. 78. In particular, the Government asserts that those paragraphs (443 and 444) which suggest that it is contrary to the principles of freedom of association to dismiss or to refuse to re-employ trade unionists or union leaders for having participated in a strike have no application to provisions such as section 62 which apply only to dismissal during a strike or other industrial action. The Government reiterates that a worker who is dismissed for contemplating industrial action, or after a return to work, has a right to complain of unfair dismissal. The Government does not consider that employees taking part in industrial action are entitled to dismissal protection equivalent to that accorded to "taking part in trade union activities". British law has long recognised that such a proposition could not be accepted without allowing employees to embark on industrial action in the knowledge that their employer could never dismiss any of them without risking claims of unfair dismissal. The Government does not agree with the NUS's argument that paragraphs 443 and 444 of the Digest are to be interpreted as implying that workers must be given dismissal protection while they are taking industrial action because otherwise there is a failure to provide them with the protection required by Article 1 of Convention No. 98 against dismissal on the ground of their trade union activities. In the Government's view such an interpretation would run contrary to the express wording of Article 1(2)(b), since an employer who dismisses workers while they are on strike may be presumed not to have consented to this particular activity (i.e. the strike) taking place during working hours.
65. 79. According to the Government, a further difficulty with the complainant's arguments relating to Article 1 of Convention No. 98 resides in the fact that workers who are taking industrial action in any particular case may or may not be members of a trade union, or some may be members and others may not. This seems impossible to reconcile with a submission that the effect of section 62 in removing jurisdiction from tribunals where employees are dismissed while taking industrial action is to be seen as a failure to provide protection against dismissal on grounds of participation in trade union activities under Article 1.
66. 80. The complainant's arguments based on Articles 4 and 8 of Convention No. 158 are irrelevant because that Convention has not been ratified by the United Kingdom.
67. The Employment Act, 1990
68. 81. The Government agrees that the effect of the new section 62A which is inserted in the EPCA by section 9 of the 1990 Act is to ensure that there is no right to complain of unfair dismissal where an employee is dismissed while taking part in a strike or industrial action which is "unofficial" within the terms of section 26A(2). As such it constitutes part of a package of measures which were introduced in order to deter and discourage unofficial industrial action. Since these provisions were first introduced in the Parliament in 1989, and were not enacted until 1990, they could not have had any bearing upon the dispute between the NUS and P & O in 1987-88.
69. 82. In order to place section 62A in context, the Government points out that the section: (i) does not apply where the industrial action is "official", i.e. has been called or otherwise endorsed by a trade union; (ii) does not render unofficial industrial action unlawful or fetter the freedom of employees to engage in such action; and (iii) does not prevent an employee from making a complaint of unfair dismissal if the dismissal occurs before the industrial action begins or after the employee concerned has ceased to take part in it.
70. 83. As with section 62, the Government considers that section 62A cannot be shown to be incompatible with any provision of Conventions Nos. 87 or 98, and Convention No. 158 cannot be taken into account.
71. 84. The Government rejects the complainant's allegations relating to the imputation to unions of liability for the actions of officials, and to the effect of section 62A(4). These latter allegations are said to be based upon a misconception as to the effect of that subsection. Under British law an industrial tribunal must both determine the facts of a case and apply the relevant law. Section 62A(4) means simply that if a complaint of unfair dismissal is brought by a person dismissed during industrial action and an issue is raised as to whether that action was authorised or endorsed by a trade union the tribunal must look at the factual situation at the date of the dismissal. The Government does not believe that issues arising under section 62A will be determined in any different way from other questions relating to whether a tribunal has jurisdiction to consider a complaint of unfair dismissal. Moreover, as with all unfair dismissal proceedings before an industrial tribunal, an appeal will lie to the Employment Appeal Tribunal on any point of law arising in a decision of an industrial tribunal under the new section.
72. 85. As concerns imputed liability, the Government points out that under British law a trade union may commit an actionable wrong ("tort") if it induces workers to take industrial action which interferes with the performance of their contracts of employment, where the inducement does not have "immunity". The amendments to section 15 of the Employment Act, 1982 made by section 6 of the 1990 Act simply identify those officials and bodies whose acts are to be taken to be the acts of the trade union for this purpose. These changes recognise and reflect the fact that, as far as ordinary union members and others who deal with a union are concerned, a call to industrial action made by any of the union's officials, or by committee members, will normally be seen as a call by the union itself. Acts of authorisation or endorsement of industrial action are, by definition, acts which affect parties other than the union itself, and for this reason it cannot be correct to argue that the new provisions relate solely to a union's internal affairs. In any case, a union may avoid such liability simply by repudiating the act of the official or decision-making body. All that the 1990 Act requires is that this decision be adequately communicated to those affected by the relevant act.
73. 86. The Government denies that the 1990 Act makes industrial action intended to protest the selective dismissal of unofficial strikers unlawful. What it does do is remove protection against common law liability from any such act. This is a necessary part of the package of measures in the Act which are intended to deter and discourage unofficial industrial action.

D. The Committee's conclusions

1. 87. The allegations presented by the NUS (which as a result of a recent amalgamation is now part of the National Union of Rail and Maritime Workers) centre upon two basic issues: (i) the dismissal of 2,000 seamen in the course of an industrial dispute between the NUS and a major ferry operator in 1988; and (ii) the alleged lack of adequate remedies under British law for workers who are dismissed in the course of an industrial dispute. The complainant supports its allegations by means of detailed analysis of the relevant legislative provisions, and of the pertinent international standards and principles (including the jurisprudence of the Committee), together with an account of what it considers to be the salient features of the P & O dispute. The Government for its part has provided certain observations on the substance of the dispute, together with a detailed response to the complainant's analysis of the relevant legislative and international standards.
2. 88. Notwithstanding the elaborate submissions which have been directed to it, the Committee considers that the issues raised by this case are essentially very simple. In the course of an industrial dispute with the company seamen employed by it voted to go on strike. Some time after the strike began the company wrote to each of the strikers warning that if they did not return to work on the proffered terms their employment would be treated as at an end. It appears that some 800 of the strikers accepted re-employment on the terms offered by the company. The remaining 1,200 refused, apparently because the terms offered were greatly inferior to those which had prevailed before the strike began. The complainant then sought to initiate unfair dismissal proceedings on behalf of some 1,025 of its members who had not been re-engaged. These endeavours were unsuccessful.
3. 89. The Committee does not consider that it is necessary to express any view as to the merits of the original dispute between the complainant and its members on the one hand, and the company on the other. Nor would it be appropriate for the Committee to express any view as to the correctness or otherwise, in terms of United Kingdom law, of the decisions of the various judicial authorities which have considered the unfair dismissal cases brought against the company by members of the NUS. It is, however, both necessary and appropriate for the Committee to express a view as to: (i) whether it is compatible with the principles of freedom of association for workers who are engaged in a legitimate exercise of the right to strike to be dismissed by their employer; (ii) whether conformity with the principles of freedom of association is in any way affected by the offer of re-engagement to dismissed strikers upon terms that are markedly less favourable than those which operated prior to the dispute; and (iii) whether the provisions of the EPCA, as amended, afford adequate protection to workers who lose their employment in consequence of their participation in strikes or other industrial action.
4. 90. As both the complainant and the Government point out, the Committee has consistently taken the view that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association (Digest, para. 444). The Government seems to suggest that conformity with this principle requires that workers not be dismissed after the conclusion of a strike on account of their participation therein, but that it does not apply to dismissals during a strike, as was the case in this instance. The Committee considers that this view cannot be sustained. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalise the exercise of the right to strike. Applying these principles to the facts of the present case, the Committee can only conclude that the dismissal of 2,000 members of the complainant union in April 1988 was not compatible with the principles of freedom of association.
5. 91. The Committee also considers that the subsequent offer of re-employment on less favourable terms and conditions has no bearing upon whether the original dismissals were compatible with the principles. What is relevant is that 2,000 workers were dismissed because they had taken strike action against their employer, and had refused to return to work on the terms offered. The subsequent offer of re-engagement on less favourable terms than had prevailed hitherto cannot alter the fact of, or the motivation for, those dismissals.
6. 92. As regards section 62 of the EPCA, the Committee notes that in 1989 the Committee of Experts on the Application of Conventions and Recommendations directed certain observations to the Government in relation to this provision:
7. The Committee considers that it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention (No. 87) for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal.
8. ...
9. It is clear ... that the common law does not accord workers who have been dismissed in connection with a strike, lock-out or other form of industrial action the right to present a complaint against that dismissal to a court or other authority independent of the parties concerned. The same is true of statutory provision relating to unfair dismissal - subject to the limited measure of protection which is afforded to those who are subjected to "discriminatory dismissal" within the meaning of section 62 of the Employment Protection (Consolidation) Act, 1978 (as amended by section 9 of the 1982 Act). The Committee considers that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour; and (ii) because an employer can rehire on a discriminatory basis so long as there is a gap of three months between the dismissal of the "victimised" workers and the rehiring. Consequently, the Committee asks the Government to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above.
10. 93. In its response to these observations, which it has incorporated in its reply to the allegations in the present case, the Government states that the law in the United Kingdom does provide some degree of protection in relation to those who take or organise industrial action. But it then goes on to point to several differences between the structure of British labour law and that of other countries. These differences include: (i) the fact that it is impossible under British law for any worker to be ordered back to work by a court in any circumstances; (ii) the fact that workers and unions enjoy a measure of legislative protection against common law liability in respect of industrial action; and (iii) that British law had never included the concept that a worker taking industrial action should have some form of special protection from the consequences that may follow therefrom.
11. 94. Like the Committee of Experts, the Committee recognises the EPCA does indeed provide a measure of protection against dismissal on the grounds of participation in strikes or other industrial action. However, it also considers that the degree of protection provided by that legislation is not such as to satisfy the requirements of the principles of freedom of association. It is necessary, therefore, that the EPCA be amended to give effective protection to workers who have been dismissed for having participated in a strike and in particular to enable workers who are dismissed in the course of, or at the conclusion of, a strike or other industrial action to challenge their dismissal before a judicial authority.
12. 95. Both the complainant and the Government made a number of submissions in relation to what is now the Employment Act, 1990. In particular, the complainant alleges that section 62A of the EPCA, which was added to the 1978 Act by section 9 of the 1990 Act, further narrows the scope of the limited protection provided by section 62 of the EPCA. The Government does not deny this, but claims that this measure was justified by reference to the need to deter and discourage unofficial industrial action.
13. 96. The Committee notes that the provisions of the 1990 Act had no bearing upon the dispute between NUS and P & O which is the principal focus of the complainant's allegations: (i) because the legislation was not in force at the relevant time; and (ii) because it would have had no bearing upon the dispute even if it has been operative since there was no suggestion that the strike which began in February 1988 had been "unofficial" in character. Nevertheless, section 62A does appear to narrow the scope of protections which the Committee has already determined to be inadequate in terms of respect for the principles of freedom of association. Accordingly, it calls upon the Government to introduce suitable amendments to bring section 62A of the EPCA into full conformity with the principles of freedom of association.
14. 97. The issues raised by the complainant's allegations clearly bear upon the effect given to Conventions Nos. 87 and 98 in the United Kingdom. Accordingly, the Committee draws its conclusions in this case to the attention of the Committee of Experts.