National Association of Teachers in Further and Higher Education v United Kingdom (decision), 16 April 1998 [ECtHR]

Case no 28910/95

The Commission notes that the requirement to disclose a list of its members to an employer at the often tense moment of a ballot on whether industrial action should be taken may affect the way in which the applicant union protects the rights of its members. (...)
The Commission recalls that Article 11 (Art. 11) of the Convention guarantees freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (Eur. Court HR, National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 18, para. 39). The right to strike is an important aspect of that protection, but it is not expressly enshrined in Article 11 (Art. 11) and may be subject under national law to regulation of a kind that limits its exercise in certain circumstances (Eur. Court HR, Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 16, para. 36).

Sections 226A and 234A of the 1992 Act limit the practical exercise of the right to strike, in that they add a further procedural hurdle in the path of a union which wishes to call for industrial action. (In this connection the Commission notes that the Committee of Independent Experts of the European Social Charter is considering the provisions in the context of Article 5 of the European Social Charter; see Conclusions XIII-3, p. 109). The question for the Commission, however, is whether this hurdle is compatible with the right of a trade union under Article 11 (Art. 11) to protect the occupational interests of its members.

The applicant union concedes that the interference is prescribed by law. It claims, however, that the requirement to divulge the names of its members who are to be included in a ballot or in industrial action, is not proportionate to any legitimate aim. It contends that it is not right that an employer should be able to compel a union to disclose who is to be balloted or to take part in industrial action, and that the provision does not strike the right balance between the rights of the employer and those of the union.

The Commission notes that the first instance judge found that the aim of Sections 226A and 234A was to give employers the opportunity to seek to persuade employees who were entitled to vote or to participate, to say no to the proposed action, and that a targeted approach would be more effective and less likely to provoke resentment than a lobbying of the whole work force.

The Commission does not agree with the applicant union that the requirement to divulge the names of members is a significant limitation on the right to take collective action: even in the often tense context

of industrial disputes, a requirement to disseminate information with a view to furthering debate and discussion between the parties cannot be seen as inherently incompatible with Article 11 (Art. 11) of the Convention. It is conceivable that, in certain circumstances, an employer will use, or try to use, the information to put undue pressure on an employee not to participate in a ballot, or to vote in a particular way, but in the present case there was and is no allegation whatever that the College was an "anti-union" employer. Thus even if, contrary to the opinion of the first instance judge and the Government, there were no protection in domestic law for employees who are victimised as a result of union activity, the present applicant union (and its members at the college) would not have been under such pressure.

The Commission notes the applicant union's claim that on a "balance of inconvenience", it should not be saddled with the considerable administrative burden of having to produce lists of its members for each employer where a ballot is to take place, when employers could themselves ask employees about their intentions. However, the question for the Commission is not whether the aim pursued could be achieved by other means, but rather whether the applicant's rights under the Convention have been violated. The Commission is not satisfied that there was any real difficulty for the applicant union in producing a list of members at each establishment where it was represented, or that any minor errors which might have occurred in preparing such lists from records which were not completely up to date would have had any impact on the union's position.

A further consideration in the present case is that the applicant union had to choose between divulging the names of members who may not have wanted their employer to know that they were members of a union, and - in effect - not taking industrial action. The first instance judge considered that no harm would be done by divulging the names, as an anti-union employer would in any event know which worker was a member of which union and in such a case there was the protection of domestic law, while in the case of an employer who was not anti-union, there was no need to fear undue pressure.  The Master of the Rolls was of the opinion that the choice between obtaining the consent of members to having their names divulged and not giving the notice (and therefore not striking) was a real choice.

The Commission can accept that there may be specific circumstances in which a legal requirement on an association to reveal the names of its members to a third party could give rise to an unjustified interference with the rights under Article 11 (Art. 11) or other provisions of the Convention. In the present case, however, the Commission does not accept that the obligation on the applicant union to reveal its membership list had an adverse effect on the applicant union's right to act to protect its members' interests. If the members of a union decide to strike, the employer will be aware of the names

of the strikers, and the fact that the employer finds out their names before, rather than after, the ballot cannot materially affect the position.  Further, the employer will be aware of the names of all those members of the union whose union dues are deducted at source by the employer.  It is conceivable that there may be members who do not wish their names to be revealed, who would vote against a strike and then would not be involved in a strike, and that such members would prefer that their names should not be given to their employer. However, the Commission considers that there is nothing inherently secret about membership of a trade union, and in any event the applicant union does not submit that there were, in reality, any such members, whether at the college or at other places where a strike was envisaged.

In the circumstances of the present case, therefore, the Commission finds that the requirement on the applicant union to reveal the names of the members participating in the ballot before taking industrial action did not result in an interference with the applicant union's rights under Article 11 (Art. 11) of the Convention which was disproportionate to the legitimate aim pursued and that the facts accordingly disclose no violation of the provisions of that Article.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

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