FOURTH SECTION
Application no. 1278/11
Annalisa ROFFEY and others 
against the United Kingdom
lodged on 17 December 2010
STATEMENT OF FACTS

The applicants, Ms Annalisa Roffey, Ms Sharon Owens, Mr Robert McCallum and Ms Elizabeth Malone, are British nationals who were born in 1975 and 1955, 1947 and 1956 respectively. Each of the individual applicants is a member of Unite the Union (“Unite”), which is also an applicant in these proceedings. The individual applicants represent some 5,000 members of Unite. The applicants were represented before the Court by Mr S. Cottingham, Mr J. Hendy QC and Mr P. Edwards, lawyers practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The individual applicants are employed by British Airways Plc (BA) as aircraft cabin crew. Of the 13,100 cabin crew currently employed by BA, approximately 96% are members of Unite. Unite is recognised by BA for the purposes of collective bargaining on behalf of cabin crew.
During the period in question, BA and its cabin crew staff, through their trade unions, had reached a collective agreement as to the number of cabin crew to be used on each type of aircraft and route. The agreed crew numbers exceeded the minimum number set for each type of aircraft by the regulator in its country of manufacture and took account of safety requirements, the need to ensure adequate rest for staff and also the level of customer service on offer.
In 2007/2008 BA achieved a total operating profit of GBP 878 million. However, in 2008/2009 it made a total operating loss of GBP 720 million. For the 2009/2010 financial year, the company’s plan was to make cost savings of GBP 220 million to ensure continued financial viability. On 6 October 2009 it announced that from 16 November 2009 it intended to reduce the number of cabin crew on its flights operating out of Heathrow airport.
A number of cabin crew, acting on their own behalf and on behalf of other employees, issued proceedings against BA claiming that the reduction of cabin crew members amounted to a breach of contract. They sought and were refused an interim injunction on 5 November 2009. On 19 February 2010 their claim was dismissed by the High Court, on the ground that the collective agreement had not been intended by the parties to be legally binding and did not form a part of the claimants’ contracts of employment (Malone and others v. British Airways Plc [2010] EWHC 302 (QB)).
Meanwhile, on 6 November 2009, Unite gave notice to BA of its intention to ballot its cabin crew members. The ballot was opened on 16 November 2009 and closed on 14 December 2009, when Unite informed BA that the turn-out had been 80% and that 92.49% of those who voted favoured strike action. At the same time, Unite gave notice of a 12-day strike by cabin crew over the Christmas period, to commence 22 December and end 2 January 2010. BA applied to the High Court for an interim injunction to stop the strike, claiming that Unite had wrongly balloted several hundred of its members who had taken voluntary redundancy and who would not still be employed by BA at the time the strike was due to take place. On 17 December 2009 the High Court granted the interim injunction, holding that the Union was aware or ought to have been aware of the voluntary redundancies and could have taken steps to avoid including those members in the ballot. The judge also commented that a strike taking place over the Christmas period was fundamentally more damaging to the employer and the wider public than a strike taking place at any other time of the year, so that the balance of convenience favoured the granting of the injunction (British Airways Plc v. Unite the Union [2009] EWHC 3541 (QB)) .
Unite then re-balloted its members, between 25 January and 22 February 2010. The turnout was 9,282 members, representing 79.39% of those balloted, with 11 spoiled ballots. Of the total numbers of ballots cast, 7,482 were in favour of strike action and 1,789 against. BA sought and was granted a further interim injunction by the High Court, on the basis that, by posting copies of the result of the ballot count on its website, the union had not fully complied with the requirement under section 231 of the Trade Union and Labour Relations Consolidation Act 1992 to provide information about the result of the ballot to those entitled to vote in it. However, the Court of Appeal subsequently allowed Unite’s appeal and lifted the injunction ([2010] EWCA Civ. 669). The strike took place between 27 and 30 March 2010, with some 5,000 cabin crew members participating. The dispute was not resolved.
By letters dated between 13 April and 10 May 2010, each of the participants in the strike was informed that he or she would be permanently denied travel concessions and benefits which they otherwise would have enjoyed under non-contractual agreements with BA. The letters were written in substantially standard form which stated:
“... you failed to report for your rostered duty on at least one of the strike days during the period 27-30 March; we therefore consider you have taken part in industrial action. As a result, the following consequences will apply ...
...
Removal of staff travel
...
These concessions are non-contractual and granted, changed or withdrawn at the sole discretion of British Airways.
... from 14 April 2010, you are not eligible to benefit from any staff travel concessions either in your own right or as a nominee of another serving or former British Airways’ employee.
You may no longer use any type of rebate travel concessions ...”
A number of cabin crew, acting on their own behalf and as representatives, commenced further proceedings in the High Court. They pointed out that under BA’s “Staff Travel Policy 2009”, on completion of six months’ service, staff members became eligible to unlimited standby travel on BA airlines and various other discounts and upgrades, which they could purchase for themselves, family members and other nominated persons. Although these benefits were non-contractual, they formed a significant part of staff members’ overall remuneration package and were also used as an inducement for potential employees to accept employment. The claimants submitted that, by removing the staff travel concessions, BA had subjected them to a disciplinary sanction in the form of a detriment short of dismissal as a result of their participation in strike action. They claimed that this amounted to a breach of the terms of their contractual disciplinary procedure and of the implied contractual term of trust and confidence. BA served a defence, claiming inter alia that the withdrawal of discretionary staff travel benefits was not a disciplinary matter and that the contractual disciplinary procedures did not apply. BA further claimed that it had proper and reasonable cause to withdraw staff travel benefits and that its conduct was not calculated or likely to damage the relationship of trust and confidence.
The case was settled by consent on 1 August 2011. The basis of the settlement was an agreement reached between BA and Unite, dated 11 May 2011, which included agreements on pay and conditions, including an agreement for staff travel benefits to be reinstated. In return, Unite agreed not to directly or indirectly pursue or support any litigation arising out of the 2010 industrial action.
B.  Relevant domestic law and practice
Under domestic law a worker who participates in industrial action will be acting in breach of his contract of employment. Workers who strike are therefore exposed to penalties which employers may lawfully impose. Penalties may include refusing to pay wages, suing for damages and even dismissal.
Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that dismissal of an employee taking official industrial action automatically constitutes unfair dismissal:
“238A.— Participation in official industrial action.
(1) For the purposes of this section an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of section 219 is not actionable in tort.
(2) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) as unfairly dismissed if—
(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and
(b) subsection (3), (4) or (5) applies to the dismissal.
...”
Section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992 clarifies the meaning of “official” industrial action:
“237.— Dismissal of those taking part in unofficial industrial action.
(1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.
(2) A strike or other industrial action is unofficial in relation to an employee unless—
(a) he is a member of a trade union and the action is authorised or endorsed by that union, or
(b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.
Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.”
In Metrobus Ltd v Unite the Union [2009] IRLR 851, § 118, Maurice Kay LJ summarised the status of the right to strike in English law:
“In this country, the right to strike has never been much more than a slogan or a legal metaphor. Such a right has not been bestowed by statute. What has happened is that, since the Trade Disputes Act 1906, legislation has provided limited immunities from liability in tort. At times the immunities have been widened, at other times they have been narrowed. Outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract on the part of the strikers and the economic torts as regards the organisers and their union. Indeed, even now the conventional analysis at common law is that by going on strike employees commit repudiatory breaches of their contracts of employment. ... No statutory immunity attaches to such individual breaches, although those who induce them are protected and, since 1999, the dismissal of those taking part in official, but not unofficial, industrial action will in defined circumstances constitute unfair dismissal. ... It helps to keep this history and conceptual framework in mind when construing and applying the detailed provisions of the statute.”
Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects against anti-union discrimination in circumstances where the industrial action takes place outside working hours or with the consent of the employer:
“146.— Detriment on grounds related to union membership or activities
(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—
...
(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, ...
...
(2) In subsection (1) ‘an appropriate time’ means—
(a) a time outside the worker’s hours, or
(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union...;
and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.
...
(5) A worker or former worker may present a complaint to an [employment tribunal] on the ground that [he has been subjected to a detriment] by his employer in contravention of this section.
(5A) This section does not apply where—
(a)	the worker is an employee; and
(b)	the detriment in question amounts to dismissal”.
In Metrobus Ltd, cited above, having considered the cases of Demir and Baykara v. Turkey [GC], no. 34503/97, 12 November 2008 and Enerji Yapı‑Yol Sen v. Turkey, no. 68959/01, 21 April 2009, Lloyd LJ concluded that this Court’s jurisprudence did not establish that the right to strike forms an essential element of Article 11 of the Convention:
“35. On the face of it, therefore, this [Enerji Yapi-Yol Sen] is a decision to the effect that action to prevent participation in a strike, or to impose sanctions for such participation, is an interference with the right to freedom of association under article 11, for which justification has to be shown in accordance with article 11(2). The contrast between the full and explicit judgment of the Grand Chamber in Demir and Baykara on the one hand, and the more summary discussion of the point in Enerji Yapi-Yol Sen on the other is quite noticeable. It does not seem to me that it would be prudent to proceed on the basis that the less fully articulated judgment in the later case has developed the Court’s case-law by the discrete further stage of recognising a right to take industrial action as an essential element in the rights afforded by article 11.”
C.  Relevant international law and practice
The United Kingdom is one of 43 Contracting States which have ratified the European Social Charter. Article 5 of the Social Charter provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom...”
Article 6 of the Charter is headed “The right to bargain collectively” and provides:
“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:
(1)  to promote joint consultation between workers and employers;
(2)  to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
(3)  to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
(4)  the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
Article 31 of the 1961 Charter (Article G of the 1996 Charter) provides:
1.	The rights and principles set forth in Part 1 when effectively realised, and their effective exercise provided for in Part II, shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals.
2.	The restrictions permitted under this Charter to the rights and obligations set forth herein shall not be applied for any purpose other than that for which they have been prescribed.
The European Social Rights Committee does not appear to have specifically considered the situation in the United Kingdom regarding sanctions falling short of dismissal. However, in Conclusions I (1969/70), at 38-39, the European Social Rights Committee issued a statement on the interpretation of Article 6(4) of the Charter. Considering the compatibility with the Charter of a rule according to which a strike terminates the contract of employment, the Committee held:
“In principle the Committee takes the view that this is not compatible with the respect of the right to strike as envisaged by the Charter. Whether in a given case a rule of this kind constitutes a violation of the Charter is, however, a question which should not be answered in the abstract, but in the light of the consequences which the legislation and industrial practice of a given country attaches to the termination and resumption of the employment relationship. If, in practice, those participating in a strike are, after its termination, fully reinstated and if their previously acquired rights (e.g. concerning pensions, holidays and seniority) are not impaired, the formal termination of the employment contract does not, in the opinion of the Committee, constitute a violation of the Charter.”
The International Labour Organisation (ILO) has adopted two conventions of particular relevance; Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and Right to Organise and Collective Bargaining Convention, 1949 (no. 98). Both Conventions have been ratified by 43 Contracting States including the United Kingdom. The United Kingdom ratified Convention 87 in 1949 and Convention 98 in 1950. Neither Convention 87 nor 98 expressly provides for a right to strike. However, the ILO has considered that Convention 87 implicitly includes the right to strike as an essential means by which trade unions can protect the interests of their members (see Freedom of Association and Collective Bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations 1994, §§ 136-141, 148):
“The promotion and defence of workers’ interests presupposes means of action by which the latter can bring pressure to bear in order to have their demands met. In a traditional economic relationship, one of the means of pressure available to workers is to suspend their services by temporarily withholding their labour, according to various methods, thus inflicting a cost on the employer in order to gain concessions...the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests.”
Convention no. 87 provides, inter alia:
“Part I.  Freedom of Association
Article 1
Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.
Article 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
Article 3
Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
...
Article 8
2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
...
Article 10
In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
Part II.  Protection of the Right to Organise
Article 11
Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”
Convention no. 98 provides, inter alia:
“Article 1
1.  Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2.  Such protection shall apply more particularly in respect of acts calculated to –
(a)  make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b)  cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
Two European Union instruments specifically address the right to strike. The Social Charter of the Fundamental Social Rights of Workers states inter alia:
“11. Employers and workers of the European Community shall have the right of association in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests.
12. Employers or employers’ organisations, on the one hand, and workers’ organisations, on the other, shall have the right to negotiate and conclude collective agreements under the conditions laid down by national legislation and practice.
13. The right to resort to collective action in the event of a conflict of interests shall include the right to strike subject to the obligations arising under national regulations and collective agreements.”
The Charter of Fundamental Rights of the European Union also makes provision for trade union rights:
“Article 12 – Freedom of assembly and of association
1.	Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
...
Article 28 – Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”
Lastly, Article 8 § 1 of the International Covenant on Economic, Social and Cultural Rights 1966 expressly recognises the right to strike:
“1. The States Parties to the present Convention undertake to ensure:
(a)	The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b)	The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations;
(c)	The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d)	The right to strike, provided that it is exercised in conformity with the laws of the particular country;”
COMPLAINTS
The applicants complain under Article 11 of the Convention that the United Kingdom’s failure to prevent BA from imposing sanctions for exercising their right to strike constitutes a violation of the State’s positive obligations to protect that right. The applicants further complain under Article 13 of the Convention that the State has failed to provide an effective remedy for that violation. Additionally, the applicants complain under Article 14 of the Convention that the State has failed to prevent BA from discriminating against them for exercising their right to strike. Only those employees who participated in the strike incurred the sanctions.
QUESTIONS TO THE PARTIES

1.  In the light of the settlement reached between British Airways and Unite the Union on 11 May 2011, can the applicants claim to be victims of any violation of their Convention rights, within the meaning of Article 34 of the Convention?

2.  Have the applicants exhausted all the remedies available to the under domestic law?

3.  Were the applicants’ rights to freedom of association sufficiently protected under domestic law for the purposes of Article 11 of the Convention?

4.  Did the applicants suffer discrimination in breach of Article 14 taken in conjunction with Article 11?

5.  Did the applicants have access to an effective domestic remedy in respect of their Convention complaints, as required by Article 13?