The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible in order to enable workers and their unions adequately to protect and to promote their economic and social interests, and to organise their activities'.124 The Committee singled out in particular secondary and sympathy action which ought to enjoy legal protection in some of their aspects, as well as strikes protesting about government economic and social policies (though such action has probably never been fully protected in British law). So far as the individual striker is concerned, it was noted that under British law an employer may dismiss a striking worker with impunity at common law, and without fear of liability for unfair dismissal provided that all those engaged in the action were also dismissed.125 The Committee of Experts considered that it is inconsistent with the right to strike as guaranteed by Convention 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'.126 This approach was subsequently endorsed by the Freedom of Association Committee following a complaint relating to the dismissal of striking seafarers by P & O Ferries.127 But in view of the approach of the Human Rights Committee in the Alberta reference, this jurisprudence, for all its power, may ultimately be of little avail.128


CONCLUSION

What themes emerge from the foregoing discussion? Perhaps the most significant is the very narrow perception of what the right to freedom of association entails. The exclusion of the right to strike in particular means that the value of Article 22 is greatly reduced in the sense that much of the legislation passed since 1979 restricting trade-union freedom is clearly outside its scope. This is not to say, however, that all such initiatives are,

____________________
124
ILO, n. 41 above, 234.
125
See now Trade Union and Labour Relations (Consolidation) Act 1992, s. 238.
126
ILO, n. 41 above, 234.
127
Case No 1540 (277th Report of the Freedom of Association Committee). The Committee also commented adversely on what is now Trade Union and Labour Relations (Consolidation) Act 1992, s. 237.
128
The conclusions of the ILO bodies are in any event contested by the British Government which claims that ' United Kingdom law prevents a court, in any circumstances, from ordering a striking employee to honour his contract of employment and return to work--thus conferring an effective, and universal, freedom to strike for employees': CCPR/ C/58/Add. 12, para. 78.

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