Article 11: Right to strike and insecure workers

By Lauren Godfrey 1COR

 

Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to consider what, if any, role human rights principles have in redressing that imbalance:

 

(1)    The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECtHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.

 

(2)    Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here.   Continue reading

Grayling on the JR Attack, Sacked Christian Nursery Worker and Al-Sweady Inquiry – the Human Rights Roundup (BUMPER EDITION)

Grayling HRRWelcome back to the UK Human Rights Roundup, your regular Easter egg hunt of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

Chris Grayling is on the offensive again over Judicial Review, the Home Secretary has faced a defeat over her decision to maintain a freeze on the money given to destitute asylum seekers, while in other news, the Strasbourg court rejects a challenge to a UK ban on secondary industrial action and the long-running Al-Sweady Inquiry has concluded hearing oral evidence.

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Not unlawful to refuse egg freezing therapy for Crohn’s sufferer

bigstock-Boiled-Or-Raw-Egg-8015047Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment

Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.

There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles.  As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources. Continue reading

Article 11: Right to strike and insecure workers – Lauren Godfrey

strike2_5Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to reflect on what, if any, role human rights principles have in redressing that imbalance:

(1)    The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.

(2)    Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here. Continue reading

Public and private law wrongs are not the same – Court of Appeal

110618346_Vincent_398959c Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 472, 15 April 2014 – read judgment

This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.

It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ([2012] EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages - £300 million according to another recent judgement here.

So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.

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Bike repair and cycling training for your firm – and all for a good cause

Screen Shot 2014-04-15 at 12.05.40Not too long ago, a friend of mine, Jem Stein, set up a brilliant social enterprise called the Bike Project. It has gone from strength to strength. The project is now loking for (i) new corporate clients for its very reasonable and professional bike repair service and/or bike training service, (ii) new bikes to repair. All details below and in this flier – Adam Wagner

The Bike Project was set up in late 2012 with the primary aim of refurbishing second hand bikes to give to destitute refugees and asylum seekers in London.

Many people come to this country with nothing, often escaping persecution. Whilst a number are forced to live on as little as £35 per week and unable to work as their status as a refugee is approved, those who are able to work find getting around on public transport simply too expensive. The effect that a bike can have is underestimated. It provides access to all that London has to offer: reaching charities that help with food, healthcare, education, and even the lawyer who can aid their application process. Of course, a bike can aid employment, if they are lucky enough to receive refugee status.

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Strategic litigation: the noble pursuit of litigation – Polly Botsford

-0430-POLITICS-Justice.-006Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.

Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.

To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school. Continue reading