NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1987.tb01730.x
Published date01 September 1987
Date01 September 1987
NOTES
OF
CASES
FREEDOM
OF
AssociArroN
AND INTER-UNION
COMPETITION
SuppoRr
for the “positive” aspect of freedom of association, the
right
to
belong to and be active in a trade union, against
discrimination by employers is a comparatively recent phenomenon
in British labour
1aw.l
The Employment Protection (Consolidation)
Act
1978
(E.P.C.A.)* provides rights for individual employees not
to
be
dismissed, section
%(l)(u),(b),
or subjected
to
certain action
short
of
dismissal (A.S.D.), section 23(l)(u),(b), on grounds of
union membership or activity. Since one of the underlying objectives
of the Conservative government’s labour legislation in the 1980s
has been
to
reduce the power of trade unions,
it
is perhaps
surprising that these rights, which were first enacted in 1974-1976
as part
of
the then Labour government’s Social Contract, have not
been amended. The Employment Acts
of
1980 and 1982 (E.A.
1980 and E.A. 1982) have, however, complemented these provisions
with parallel ones which establish a right not to belong
to
a union:
section 23(l)(c) and
58(l)(c).
This general right to dissociate has
emasculated the legal support for the closed shop,
a
traditionally
important aspect of trade unions’ organisational rights.3 It also
contains the potential to undermine sections 23(1)(u),(b) and
%(l)(u),(b), provisions which form the bedrock of what
little
recognition British law provides for the right to organi~e.~
Ridgwuy
v.
National
Coal
Board’
raised a major question
concerning the effect
of
the precise wording
of
the right not
to
belong contained in the revised form
of
section 23(l)(c) (substituted
by
E.A. 1982 section lO(4)) on the meaning of the right
to
belong
contained in the formally unamended section 23(l)(a). Other
questions raised by the case also required close scrutiny
of
the
detailed drafting of the legislation. But the Court of Appeal
decision has a much wider significance than resolving detailed
points of statutory interpretation. The fundamental importance of
the underlying issue-the extent
of
the protection for trade unionists
against discrimination by employers-was heightened by the wider
Scc
generally Davics and Frccdland
Labour
Law:
Texf
ciml
Mnferinls
(2nd ed.
1984),
178-197; Lcwis and Simpson “Thc Right
to
Associatc” in Lcwis (ed.)
Labour
Law
in
Brifcrirr
(1986); and Wcddcrburn
The
Worker
atid
the
Law
(3rd cd. 1986), 312-317.
*
All
scction rcfcrcnccs
in
the tcxt arc
to
this Act unlcss otherwise indicated.
This support still cxists
in
thc form
of
an cxccption
to
thc gcncral dissociation rights
for ballot-approved “union inctnbcrship agreements” (U.M.A.), but is
of
lirnitcd
significancc bccausc
of
thc widc
scopc
of
the catcgorics of nonmembers whosc right not
to
belong
to
U.M.A. unions is still protcctcd undcr amendments
madc
by E.A.
1980
and
E.A. 1982,
scc
Lcwis and Simpson
op.
cif.
n.1, 67-72. The Governnient Green Paper
“Trade Unions and thcir Mcmbcrs”
Cm.
95, Fcbruary 1987 proposes complete abolition
ol
thc U.M.A. cxccption
to
thc gcncral dissociation right, paras. 4.17 and
4.18.
See
Lewis and Simpson, “Disorgiinising Industrial Relations,” (1982)
11
I.L.J. 227.
11987) I.R.L.R.
80,
(C.A.),
rcvcrsitig[1986] I.R.L.R. 379, (E.A.T.).
639
640
THE
MODERN
LAW
REVIEW
(Vol.
50
context
of
the case, inter-union rivalry. Resolution
of
inter-union
disputes is a matter on which there remains a strong preference for
voluntarism.
Ridgway
points up the difficulties which must inevitably
accompany any attempted reconciliation
of
legal support for
freedom of association with this aspect of the voluntarist tradition.
The facts
One
of
the main legacies
of
the coal dispute of
1984-85
was the
split in the National Union of Mineworkers (N.U.M.) and
subsequent formation of a new national union, the Union
of
Democratic Mineworkers (U.D.M.), by some miners in the
Nottinghamshire, South Derbyshire and Durham areas. This
occurred in two stages. In July
1985
the Nottinghamshire and
South Derbyshire Areas
of
the N.U.M., the federal structure
of
which reflects a long tradition
of
area autonomy, voted
to
disaffiliate
from the national union. The N.C.B. then granted these two area
unions sole negotiating rights in their respective areas and after
they had agreed a pay increase which was conditional on their
accepting a commitment to an incentive-based pay scheme,6 the
Board paid the increase to all miners in these two areas with effect
from November
1985.
After the formation
of
the U.D.M. in
December
1985,
the N.C.B. decided to extend the pay increase to
all
miners in any pit where the new union had more than half
of
the relevant workers in membership. But in January
1986
after a
meeting with the U.D.M. it revised this policy. Although the
election for President of the Leicestershire Area
of
the N.U.M.
had resulted in defeat for the candidate who favoured disaffiliating
from the N.U.M. and joining the U.D.M.-and shortly afterwards
the Leicestershire Area voted to remain within the N.U.M.-it was
believed, erroneously, that a majority of workers at the Ellistown
pit had supported the “pro-U.D.M.” candidate. The N.C.B.
therefore decided that workers at this pit would now receive the
pay increase, but only
if
they belonged to the U.D.M.
Ridgway and Fairbrother, two N.U.M. members who worked at
Ellistown challenged the legality
of
this action on the ground that it
infringed their right not to be subjected to A.S.D. under section
23(l)(a).
An industrial tribunal (I.T.) upheld their claim but the
Employment Appeal Tribunal (E.A.T.) allowed the N.C.B.’s
appeal. The Court
of
Appeal, by a majority, restored the industrial
tribunal decision. In order
to
succeed each of the applicants had to
show that the N.C.B. had taken
action
against him
as an individuaf,
for
the purpose
of
penalising’ him for being a member
of
an
independent trade union.
The
N.U.M.
rcccived the same pay offer but was not then prepared to accept this
condition.
Section
23(l)(a)
also
proscribes action which
prevents
or
deters
union membership.

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