In National Union of Rail, Maritime and Transport Workers v United Kingdom the European Court of Human Rights (ECHR) had to decide whether the prohibition on secondary, or so called ‘sympathy’, industrial action in the United Kingdom, breached the freedom of association under Article 11 of the European Convention on Human Rights.

In summary, the issue over secondary action came about because of a dispute over terms and conditions relating to RMT members who were TUPE transferred from Jarvis Plc to Hydrex Equipment (UK) Limited, with protected contractual terms. Following the transfer, Hydrex’s management informed the ex-Jarvis employees that because of difficult market conditions it intended to reduce the level of their terms and conditions to that of other Hydrex staff. A lawful strike took place, but the RMT was prohibited from calling on its members at Jarvis to take secondary action in support of the strike, because of S.224 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The ECHR concluded that the union’s wish to organise secondary action in support of the Hydrex employees must be seen as a wish to exercise, free of a restriction by law, its right to freedom of association within the meaning of Article 11 of the Convention. It followed that the statutory ban on secondary action constituted an interference with the RMT’s rights under this provision. However, to be allowed under paragraph 2 of Article 11, such interference must be shown to be “prescribed by law”, to pursue a legitimate aim, and to be “necessary in a democratic society” to achieve those aims, i.e. corresponds to a “pressing social need”, supported by relevant and sufficient reasons and proportionate to the legitimate aim pursued.

The Court found the interference was justified. Secondary action has the potential to impinge upon the rights of persons not party to the industrial dispute, to cause broad disruption within the economy and to affect the delivery of services to the public. Therefore in banning secondary action, the UK pursued the legitimate aim of protecting the rights and freedoms of others, not limited to the employer side in an industrial dispute. Furthermore, given the facts of this case, there was no unjustified interference with the union’s right to freedom of association because it was   able to exercise the essential elements, in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work.

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