Independent Workers Union of Great Britain, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy & Ors

Article 11 does not give every independent trade union a universal right to compulsory recognition or representation in collective bargaining in every circumstance. A statutory scheme may prioritise stable, unified bargaining and voluntary recognition, provided restrictions on access to collective bargaining have relevant and sufficient reasons and strike a fair balance. National legislatures enjoy a wide margin of appreciation in this field. Paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 was compatible with Article 11 where an independent incumbent union was already recognised and the competing union sought recognition for a small subgroup within the existing bargaining structure.

The Independent Workers’ Union of Great Britain challenged two decisions of the Central Arbitration Committee concerning recognition for collective bargaining. The CAC rejected its application against Cordant Security Ltd because an independent union, UNISON, was already recognised under paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. It rejected a separate application against the University because the University was not the workers’ employer at the time.

Supperstone J dismissed the judicial review claim on 25 March 2019. The Union did not pursue the appeal concerning the University. The remaining issue was whether paragraph 35 unlawfully interfered with Article 11, and whether it should be read down under section 3 of the Human Rights Act 1998 or attract a declaration of incompatibility under section 4.

1. Disposition. Bean LJ dismissed the appeal against the CAC’s First Decision. The appeal concerning the University was not pursued. The appeal was heard despite arguments that it had become academic because the relevant workers had transferred to the University under TUPE.
2. The Union accepted that the CAC had correctly interpreted and applied domestic legislation. The issue was therefore whether paragraph 35 of Schedule A1 was compatible with Article 11. The Strasbourg jurisprudence establishes that collective bargaining with an employer is, in principle, an essential element of Article 11, but does not confer a universal right on every union to be recognised in all circumstances. The State may choose the means by which workers’ interests are protected.
3. Where statutory rules constrain access to collective bargaining, the constraint must have relevant and sufficient reasons and strike a fair balance between competing interests. The State enjoys a wide margin of appreciation, particularly where the restriction concerns a secondary or accessory aspect of trade-union activity. The limited margin referred to in Demir and Baykara v Turkey [2009] IRLR 766 concerned restrictions within Article 11(2), rather than the definition of the essential rights protected by Article 11(1).
4. Paragraph 35 pursued legitimate statutory policies. These included encouraging voluntary recognition, avoiding competing or fragmented bargaining units, and preserving stable collective bargaining with an independent union. The workers remained free to join IWGB, UNISON or another union. The existing independent union was capable of protecting their interests. The proposed unit was a small subgroup of the existing bargaining structure. In those circumstances the restriction did not strike at the core of Article 11 rights and fell within Parliament’s wide margin of appreciation.
5. Bean LJ stated obiter that a different conclusion might follow where no union was recognised and an independent union had widespread workforce support but no mechanism existed for compulsory recognition. He also agreed with the obiter reasoning in Pharmacists’ Defence Association Union v Boots Management Services Ltd [2017] EWCA Civ 66 concerning an incumbent non-independent union. Those hypothetical situations did not arise here.
6. Underhill and Phillips LJJ agreed. The appeal was dismissed. The Appellant was ordered to pay the Second Interested Party’s costs, summarily assessed at £8,000.

• Court of Appeal (Civil Division). The court dismissed the appeal against the First Decision in [2021] EWCA Civ 260. The appeal concerning the University was not pursued. Costs were summarily assessed at £8,000.
• Administrative Court, Queen’s Bench Division. Supperstone J dismissed the judicial review claim on 25 March 2019. Lambert J had granted permission to seek judicial review on 20 July 2018, and Floyd LJ granted permission to appeal on 19 December 2019.