ASLEF v. United Kingdom
Encyclopedia
Associated Society of Locomotive Engineers and Firemen v United Kingdom [2007] ECHR 184 was a landmark case before the European Court of Human Rights
and upheld the right of ASLEF
, a British trade union
, to be able to choose its members.
(ASLEF) is an independent trade union representing mainly train drivers employed on the UK railways. One of ASLEF's aims is,
In 1978, ASLEF's governing body, the Annual Assembly of Delegates, passed a resolution to campaign against and "expose the obnoxious policies of political parties such as the National Front
". In February 2002, Jay Lee
, a member of the British National Party
which had grown from the NF, joined ASLEF. In April 2002, Lee stood as a candidate for the BNP in the Bexley
local elections. On 17 April 2002, an ASLEF officer sent a report on Lee to the union's General Secretary, including information that Lee was a BNP activist, had distributed anti-Islamic leaflets and that in 1998 he had been a BNP candidate in Newham
. Attached was an article written by Lee for Spearhead
, the BNP magazine, and a fax from the Bexley Council for Racial Equality stating that Lee had seriously harassed Anti-Nazi League
pamphleteers. On 19 April 2002, the Executive Committee of ASLEF voted unanimously to expel Lee, on the grounds that his membership of the BNP was incompatible with membership of ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union.
to contest his expulsion, under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992
, which prohibits unions from excluding or expelling persons wholly or to any extent on the ground that the individual is or was a member of a political party. He was successful in his case.
ASLEF appealed to the Employment Appeal Tribunal
which overturned the earlier decision, finding that a union could expel a member on the ground of his or her conduct, and referred the case to a second Employment Tribunal. However, the second tribunal upheld Lee's complaint, saying that his expulsion had been "primarily because of his membership of the BNP". ASLEF was therefore forced to re-admit Lee as a member, in breach of its own rules. Failure to re-admit would have meant paying compensation of at least €8,600. Even though it re-admitted Lee, ASLEF remained exposed to a claim for compensation of up to €94,200. ASLEF lodged an application with the European Court of Human Rights
(ECHR, in Strasbourg
) on 24 March 2005. The complaint relied on Article 11 of the European Convention of Human Rights (freedom of assembly and association), which states,
ASLEF's case was that the union had been prevented from expelling a member due to his membership of the BNP, a political party which advocates views inimical to its own, and that this was an infringement of freedom of association. The nature of the argument is that the United Kingdom's law (i.e. s.174 of TULRCA 1992) which required ASLEF to take back Lee into union membership or face compensation payments, violates union members' freedom of association. So ASLEF was now suing the UK government (rather than Lee).
The Court held that just as a worker should be free to join or not join a union, so is a trade union equally free to choose its members. Article 11 could not be interpreted as imposing obligations on associations to admit anyone who applied to join. Further, where associations are set up by people who share common values, ideals and goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.
The Court's view was that the United Kingdom had not struck the right balance between Lee's right and the rights of ASLEF. The Court was persuaded that expulsion did not impinge in any significant way on Lee's freedom of expression or political activity, nor would he suffer any detriment: there being no 'closed shop' there was no apparent prejudice to him in terms of employment or livelihood.
Of greater weight was the union's right to choose its members. Trade unions in the UK and Europe were commonly affiliated to political parties or movements, particularly those on the left. They were not bodies solely devoted to the politically-neutral aspects of the well-being of their members, but were often ideological with strongly held views. There had been no suggestion in the Employment Tribunal hearings that ASLEF had erred in concluding that Lee's political values and ideals fundamentally clashed with its own.
The United Kingdom government had argued that UK law would have allowed Lee's expulsion if ASLEF had restricted itself to a complaint solely about Lee's conduct. However, the Court noted that the Employment Tribunal found that ASLEF's objections were primarliy based on his BNP membership, and the Court thought it unreasonable to expect ASLEF to use the pretext of a complaint about conduct, since this was carried out by him in the context of his membership of the BNP.
In the absence of any hardship suffered by Lee or any abusive and unreasonable conduct by ASLEF, the Court held that there had been a violation of Article 11 and found in favour of ASLEF.
, general secretary of the TUC, described the court's decision as an ‘important and welcome judgment’, saying that it was "common sense" that unions "should not be forced to accept into membership people opposed to the basic principles of trade unionism." He added, "Every union will welcome this clear decision that they can now expel BNP members."
ASLEF General secretary Keith Norman thanked the 18 unions who gave ASLEF financial assistance to allow them to go to the European courts: NUM, CYWU, PFA
, UCATT, NATFHE, NAPO
, USDAW, EIS
, RMT
, UNISON
, PCS
, NUMAST, Community
, CWU
, CSP
, GMB
, FBU
and NUJ
.
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
and upheld the right of ASLEF
Associated Society of Locomotive Engineers and Firemen
The Associated Society of Locomotive Engineers and Firemen is the trade union representing railway workers in Great Britain who are train drivers or in the line of promotion to train driver....
, a British trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
, to be able to choose its members.
Facts
The Associated Society of Locomotive Engineers and FiremenAssociated Society of Locomotive Engineers and Firemen
The Associated Society of Locomotive Engineers and Firemen is the trade union representing railway workers in Great Britain who are train drivers or in the line of promotion to train driver....
(ASLEF) is an independent trade union representing mainly train drivers employed on the UK railways. One of ASLEF's aims is,
"to assist in the furtherance of the labour movement generally towards a Socialist society [and to] promote and develop and enact positive policies in regard to equality of treatment in our industries and ASLEF regardless of sex, sexual orientation, marital status, religion, creed, colour, race or ethnic origin".
In 1978, ASLEF's governing body, the Annual Assembly of Delegates, passed a resolution to campaign against and "expose the obnoxious policies of political parties such as the National Front
British National Front
The National Front is a far right, white-only political party whose major political activities took place during the 1970s and 1980s. Its popularity peaked in the 1979 general election, when it received 191,719 votes ....
". In February 2002, Jay Lee
Jay Lee
Jay Lee was a British National Party member, who fought a legal battle after being expelled from a trade union.Lee, a driver for Virgin Trains, stood as a BNP candidate in the 2002 local elections in Bexley and was subsequently expelled from the train drivers' union ASLEF for BNP membership...
, a member of the British National Party
British National Party
The British National Party is a British far-right political party formed as a splinter group from the National Front by John Tyndall in 1982...
which had grown from the NF, joined ASLEF. In April 2002, Lee stood as a candidate for the BNP in the Bexley
Bexley
Bexley is an South East London]] in the London Borough of Bexley, London, England. It is located on the banks of the River Cray south of the Roman Road, Watling Street...
local elections. On 17 April 2002, an ASLEF officer sent a report on Lee to the union's General Secretary, including information that Lee was a BNP activist, had distributed anti-Islamic leaflets and that in 1998 he had been a BNP candidate in Newham
London Borough of Newham
The London Borough of Newham is a London borough formed from the towns of West Ham and East Ham, within East London.It is situated east of the City of London, and is north of the River Thames. According to 2006 estimates, Newham has one of the highest ethnic minority populations of all the...
. Attached was an article written by Lee for Spearhead
Spearhead (magazine)
Spearhead was a British far right-wing magazine edited by John Tyndall until his death in July 2005. Founded in 1964 by Tyndall, it was used to voice his grievances against the state of the United Kingdom...
, the BNP magazine, and a fax from the Bexley Council for Racial Equality stating that Lee had seriously harassed Anti-Nazi League
Anti-Nazi League
The Anti-Nazi League was an organisation set up in 1977 on the initiative of the Socialist Workers Party with sponsorship from some trade unions and the endorsement of a list of prominent people to oppose the rise of far-right groups in the United Kingdom. It was wound down in 1981...
pamphleteers. On 19 April 2002, the Executive Committee of ASLEF voted unanimously to expel Lee, on the grounds that his membership of the BNP was incompatible with membership of ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union.
Domestic appeals
Jay Lee took ASLEF to the Employment TribunalEmployment tribunal
Employment Tribunals are tribunal non-departmental public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, redundancy payments and employment...
to contest his expulsion, under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992
Trade Union and Labour Relations (Consolidation) Act 1992
The Trade Union and Labour Relations Act 1992 is a UK Act of Parliament which regulates British labour law. The Act applies in full in England and Wales and in Scotland, and partially in Northern Ireland....
, which prohibits unions from excluding or expelling persons wholly or to any extent on the ground that the individual is or was a member of a political party. He was successful in his case.
ASLEF appealed to the Employment Appeal Tribunal
Employment Appeal Tribunal
The Employment Appeal Tribunal is a tribunal non-departmental public body in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales...
which overturned the earlier decision, finding that a union could expel a member on the ground of his or her conduct, and referred the case to a second Employment Tribunal. However, the second tribunal upheld Lee's complaint, saying that his expulsion had been "primarily because of his membership of the BNP". ASLEF was therefore forced to re-admit Lee as a member, in breach of its own rules. Failure to re-admit would have meant paying compensation of at least €8,600. Even though it re-admitted Lee, ASLEF remained exposed to a claim for compensation of up to €94,200. ASLEF lodged an application with the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
(ECHR, in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...
) on 24 March 2005. The complaint relied on Article 11 of the European Convention of Human Rights (freedom of assembly and association), which states,
"Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests."
ASLEF's case was that the union had been prevented from expelling a member due to his membership of the BNP, a political party which advocates views inimical to its own, and that this was an infringement of freedom of association. The nature of the argument is that the United Kingdom's law (i.e. s.174 of TULRCA 1992) which required ASLEF to take back Lee into union membership or face compensation payments, violates union members' freedom of association. So ASLEF was now suing the UK government (rather than Lee).
European Court of Human Rights
Finding in ASLEF's favour, the Court held unanimously that there had been a violation of Article 11 and awarded the union 53,900 euros for costs and expenses.The Court held that just as a worker should be free to join or not join a union, so is a trade union equally free to choose its members. Article 11 could not be interpreted as imposing obligations on associations to admit anyone who applied to join. Further, where associations are set up by people who share common values, ideals and goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.
The Court's view was that the United Kingdom had not struck the right balance between Lee's right and the rights of ASLEF. The Court was persuaded that expulsion did not impinge in any significant way on Lee's freedom of expression or political activity, nor would he suffer any detriment: there being no 'closed shop' there was no apparent prejudice to him in terms of employment or livelihood.
Of greater weight was the union's right to choose its members. Trade unions in the UK and Europe were commonly affiliated to political parties or movements, particularly those on the left. They were not bodies solely devoted to the politically-neutral aspects of the well-being of their members, but were often ideological with strongly held views. There had been no suggestion in the Employment Tribunal hearings that ASLEF had erred in concluding that Lee's political values and ideals fundamentally clashed with its own.
The United Kingdom government had argued that UK law would have allowed Lee's expulsion if ASLEF had restricted itself to a complaint solely about Lee's conduct. However, the Court noted that the Employment Tribunal found that ASLEF's objections were primarliy based on his BNP membership, and the Court thought it unreasonable to expect ASLEF to use the pretext of a complaint about conduct, since this was carried out by him in the context of his membership of the BNP.
In the absence of any hardship suffered by Lee or any abusive and unreasonable conduct by ASLEF, the Court held that there had been a violation of Article 11 and found in favour of ASLEF.
Significance
Brendan BarberBrendan Barber
Brendan Paul Barber has been the General Secretary of the United Kingdom's Trades Union Congress since June 2003.-Early life:...
, general secretary of the TUC, described the court's decision as an ‘important and welcome judgment’, saying that it was "common sense" that unions "should not be forced to accept into membership people opposed to the basic principles of trade unionism." He added, "Every union will welcome this clear decision that they can now expel BNP members."
ASLEF General secretary Keith Norman thanked the 18 unions who gave ASLEF financial assistance to allow them to go to the European courts: NUM, CYWU, PFA
Professional Footballers' Association
The Professional Footballers' Association is the trade union for professional footballers in England and Wales. The world's oldest professional sport trade union, it has 4,000 members....
, UCATT, NATFHE, NAPO
National Association of Probation Officers
The National Association of Probation Officers is the trade union that represents probation officers and Children and Family Court Advisory and Support Service reporters in the United Kingdom.NAPO was formed in 1912...
, USDAW, EIS
Educational Institute of Scotland
The Educational Institute of Scotland is the oldest teachers' trade union in the world, having been founded in 1847 when dominies became concerned about the effect of changes to the system of education in Scotland on their professional status....
, RMT
National Union of Rail, Maritime and Transport Workers
The National Union of Rail, Maritime and Transport Workers is a trade union in the United Kingdom which unionises transport workers. It has more than 80,000 members, and its current general secretary is Bob Crow...
, UNISON
UNISON
UNISON is the largest trade union in the United Kingdom with over 1.3 million members.The union was formed in 1993 when three public sector trade unions, the National and Local Government Officers Association , the National Union of Public Employees and the Confederation of Health Service...
, PCS
Public and Commercial Services Union
The Public and Commercial Services Union is the sixth largest trade union in the United Kingdom. Most of its members work in government departments and other public bodies although some work for private companies.- Membership and organisation :...
, NUMAST, Community
Community (trade union)
Community is a UK trade union representing workers in the iron and steel, domestic appliance manufacturing, clothing, textiles, footwear and betting industries as well as workers in voluntary organisations, workshops for visually impaired and disabled people, community-care providers and housing...
, CWU
Communication Workers Union (UK)
The Communication Workers Union is the main trade union in the United Kingdom for people working for telephone, cable, DSL and postal delivery companies, with 215,000 members....
, CSP
Chartered Society of Physiotherapy
The Chartered Society of Physiotherapy , is the professional body and trade union for physiotherapists in the United Kingdom.Formed by four nurses in 1894, the Society now has more than 50,000 members.-Membership:There are four levels of membership:...
, GMB
GMB Union
The GMB is a general trade union in the United Kingdom, and has more than 600,000 members. Its members are drawn from many sectors, with particular strength amongst manual workers in local government and the health service...
, FBU
Fire Brigades Union
The Fire Brigades Union is a trade union in the United Kingdom for wholetime Firefighters , Retained Duty System and Emergency Control Room staff...
and NUJ
National Union of Journalists
The National Union of Journalists is a trade union for journalists in the United Kingdom and the Republic of Ireland. It was founded in 1907 and has 38,000 members. It is a member of the International Federation of Journalists .-Structure:...
.
See also
- Wilson and the National Union of Journalists v the United Kingdom [2002] IRLR 568
- Demir and Baykara v TurkeyDemir and Baykara v TurkeyDemir and Baykara v Turkey [2008] is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining...
(2009) 48 EHRR 54 - UK labour law
- British National PartyBritish National PartyThe British National Party is a British far-right political party formed as a splinter group from the National Front by John Tyndall in 1982...