To browse Academia. At a time when the European Court of Human Rights has recognised that both collective bargaining and the right to strike are intrinsic to freedom of association, the current UK legislative regime and case law make it very difficult for trade unions to call lawful industrial action. We acknowledge scope for cooperative judicial structures, which have not been realized in the UK context.
Recent EU jurisprudence in the Viking and Laval cases has had significant impact in the UK, which has to be understood against the background of pre-existing barriers to lawful exercise of the right to strike. We identify three effects of recent EU legal developments: a chilling effect, a ripple effect and a disruptive effect.
EU case law has a chilling effect due to the willingness of UK judges to issue interim injunctions which prevent industrial action where there is an arguable case that action is unlawful and the 'balance of convenience' lies in the employer's favour. This means that where there is any risk of illegality under EU law, such as where there is a cross-border dimension to the dispute or involvement of posted workers, the employer can threaten to seek injunctive relief, which seems likely to be granted without any hearing as to the merits of the dispute.
The ripple effect arises insofar as Laval case law impedes unions' ability to bargain on behalf of migrant workers, since that jurisprudence indicates that industrial action seeking recognition in respect of posted workers is unlawful. The UK has no system to extend existing collective agreements to cover such workers. In addition, there is now uncertainty as to whether the full statutory employment rights which currently cover such workers will continue to do so.
Further uncertainty arises in respect of disclosure requirements in cases involving industrial action. The final disruptive effect arises in the context of mounting evidence of systematic abuse of employment rights amongst foreign workers in the UK, including posted workers.
