The right to strike and the European Court of Human Rights

The UK is increasingly out of step with international law in its approach to industrial action. The International Labour Organisation has repeatedly condemned the UK’s anti-strike laws as incompatible with ILO Convention 87 on Freedom of Association and Protection of the Right to Organise, ratified by the UK in 1949. The UK has also been consistently criticised by the European Committee on Social Rights.

Separately, the European Court of Human Rights (ECHR) has confirmed that the human right to freedom of association under Article 11 of the European Convention on Human Rights includes the right to bargain collectively (Demir and Baykara v Turkey [2009] IRLR 766) and the right to strike (see RMT v UK [2014] ECHR 366 and Tymoshenko v Ukraine [2014] ECHR 1016).

Although the ECHR has confirmed that there is a human right to strike, it has refused to outlaw the UK ban on secondary action. In RMT v UK [2014] ECHR 366, the court ruled that the ban does not infringe Article 11. Instead, national courts have a wide “margin of appreciation” (in other words, significant flexibility or freedom) to make laws limiting secondary action without infringing the Convention.