Thanks to Ed McFarlane of Deminos HR
for preparing this case summary
Are the UK's restrictions on secondary industrial action (otherwise
known as 'sympathy strikes') an unlawful interference with freedom of
association under the European Convention on Human Rights?
No, holds the European Court of Human Rights, unanimously, in RMT v UK
, but with differing reasons.
The case arose after the RMT abandoned secondary action at a rail
contractor, Jarvis Rail Ltd, to protect members who had transferred from
Jarvis to Hydrex Ltd, and ultimately agreed to new terms with Hydrex.
The unanimous decision of the Court was that there was no breach of
Article 11 of the Convention, which guarantees the right to freedom of
peaceful assembly and of association with others, by the UK laws
restricting secondary industrial action.
The majority considered the Vienna Convention on the Interpretation of
Treaties, interpreting the Convention in harmony with general principles
of international law (para. 76), noting that secondary action was
recognised and protected as part of trade union freedom under the
International Labour Organisation Convention (ILO) no. 87 and the
European Social Charter.
The majority noted that there was a broad margin of appreciation
available to national legislatures in dealing with 'a secondary or
accessory aspect of trade union activity" (para. 87) and "it cannot be
said that the ban on secondary action struck at the very substance of
the applicant's (RMT's) freedom of association" (para. 88). Overall, UK
law struck a fair balance (para. 103). There was no unjustified
interference with the RMT's right to freedom of association, and it was
able, despite UK law, to exercise the essential elements of freedom of
association in negotiating with the employer of its members and in
organising a strike.
The majority of the ECHR did note that it had no competence to assess
whether or not UK law complied with the ILO's charter or the European
There were two minority concurring judgments, with three judges jointly
noting that secondary strikes were not necessarily or directly relevant
to the rights or interests of those engaged in strike action, and one
judge holding that Article 11 of the ECHR was not applicable to the
The ECHR threw out as inadmissible a challenge by the RMT to the UK's
provisions on strike ballot notice provisions, noting that the RMT had
complied with the UK's requirements and led a successful strike despite
the procedural requirements of UK law. Readers may recall the Metrobus