Exercising the right to strike is fundamentally an expressive act. The withdrawal of labour is expressive of a grievance against the employer or even the political choices of the government. It is this expressive dimension that distinguishes striking from other forms of non-work. During industrial disputes, tensions and conflicts between workers and employers are often heated. Social media is increasingly used during strikes as a way of maintaining solidarity across different sites of industrial action. Striking workers use social media to criticise employers, to voice concerns about wider political problems in the sector, or even to criticise union negotiators for their conduct of the dispute. A search of Twitter during current UCU ‘Four Fights’ dispute reveals a rich vein of expressive content that is variously funny, moving, insightful, and robust. Some of it might even be deemed by the objects of criticism as offensive.
Given the centrality of speech to striking, how freely can workers express themselves against their employers when these challenging situations arise? Can striking workers publicly criticise an employer? Can they criticise the practices of a whole sector? What are the scope and the limits of free speech at work during strike action? These are challenging questions in general, and even more so in the age of social media, when employees can share information with great ease and speed, and may lose their job for that reason. The domestic courts have nevertheless demonstrated that Article 10 may have significant teeth within the context of industrial protest. In Thames Cleaning and Support Services Limited v United Voices of the World, Petros Elia, for example, Warby J considered an injunction within the context of industrial picketing and Article 10. In refusing to grant a broad injunction to restrain the picketing, Warby J observed that
Freedom of speech includes the right to embarrass or offend. It is not necessary in a democratic society to prevent people telling their alleged oppressors to “fuck off”, or expressing their disgust at the employment practices of high street shops. It may be legitimate to do this noisily.
In this blog post we will assess the questions by looking at employment law as well as human rights law under the Human Rights Act 1998 (HRA) / European Convention on Human Rights (ECHR), with a particular focus on expressive activities during strikes. In particular, we will assess whether the robust protection of Article 10, so evident in the collective sphere of protest injunctions, might infuse the statutory protections afforded to individuals.
There are no specific statutory provisions regulating speech during industrial action. The scope of protection depends upon the general provisions under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). We consider two scenarios in a strike that has been authorised or endorsed by the trade union. First, the individual striker is dismissed for expressive activities on social media during the strike. Secondly, the individual striker is subjected to a detriment for those expressive activities.
The main provisions on dismissal of strikers are set out in TULRCA 1992 sections 238 and 238A. Let us begin with section 238A which gives protection from dismissal where that occurs within the context of ‘protected industrial action’. Industrial action is ‘protected’ where the strike action has been authorised or endorsed by the union and the strike action is ‘not actionable in tort’ because it is a ‘trade dispute’, there is full compliance with the range of procedural requirements such as balloting and notice requirements, and so forth. Where an employee has been dismissed and ‘the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action’, the dismissal is automatically unfair. This means that protection is available from ‘day one’ of her employment and is not subject to the usual requirement of two years’ continuity as for a standard unfair dismissal claim.
On its face, this appears to provide significant protection to employees dismissed during a strike. There are a number of difficulties, however. First, the protection is limited to twelve weeks from the first day of strike action. The duration of protection can be extended beyond this period where the employer has not taken ‘reasonable procedural steps’ to resolve the dispute. Where strike action is staggered over a longer period of time, as in the UCU dispute, this can mean that strikers are outside of the ‘protected’ period under s 238A. Secondly, unfair dismissal protection is limited to ‘employees’ which may exclude more precarious work relations that meet the ‘limb (b) worker’ threshold but not the ‘employee’ threshold (on the difference between these statuses, see this earlier post).
Finally, and most significantly, the proscribed reason is that the employee was taking protected industrial action. This invites a series of fine questions about the mental state of the employer in an industrial dispute. What if the employer was to argue that the reason for dismissal was the employee’s social media activity during the strike, rather than the fact that she was engaged in protected strike action? The employer could point to the fact that only those strikers who engaged in the objectionable social media activity were dismissed, and they would have been dismissed for it even if not on strike. If that argument were to succeed, the situation may not be caught by s 238A which could leave the individual exposed to retaliatory action for her expressive activities, but it may be caught by the HRA/ECHR, as we will explain below.
The other possibility is the unfair dismissal protection for ‘non-unofficial’ industrial action under s 238 TULRCA 1992. The effect of s 238 is to restore jurisdiction to the employment tribunal where there have been discriminatory dismissals. This provides some protective cover to employees who may be targeted for their expressive activities. Discriminatory victimisation would permit the employee to bring an ‘ordinary’ unfair dismissal claim in the ET. There are some difficulties with this too. Most importantly, perhaps, an ordinary unfair dismissal claim is subject to the two-year qualifying period of continuous employment. Where an employee has been employed for less than two years – for example, where engaged in very intermittent employment that does not meet the statutory continuity requirements under s 210 ERA 1996 – she will be unable to access the tribunal to protect her human rights. This is now subject to the ECHR decision in Redfearn v United Kingdom, which will be discussed below. Also, unfair dismissal protection is restricted to employees and does not extend to limb (b) workers.
Are workers protected under s 146 TULRCA which restricts ‘detriment’ for certain prohibited trade union reasons? The section was extended to workers to bring UK law into conformity with Article 11 ECHR. This would potentially be relevant to employees who are not dismissed but singled out for other forms of victimisation for their expressive activities during the strike. The most likely protected ground is detriment where this occurs with the ‘sole or main purpose’ of ‘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’. The use of social media to engage in expressive activity during a strike would seem to be the quintessence of the ‘activities of an independent union’. This may run into the difficulty that the activities must be ‘at an appropriate time’, defined as a time ‘(a) outside the worker’s working 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’. Some cases have indicated that participation in strike action is excluded from the scope of activities under s 146 (Drew v St Edmundsbury BC  IRLR 459). This no doubt reflects the very considerable difficulties in reconciling an anti-detriment provision with the legitimate scope for employer counter-measures during industrial action, such as deductions from pay (see, for example, Schmidt and Dahlstrom v Sweden).
In sum, the current statutory protection for expressive activities during strikes is hedged with limitations. This reflects a longstanding statutory policy, which is to limit the intervention of courts during strikes, to avoid compromising judicial neutrality in a dispute between workers and their employer. The effect of this has sometimes been to withdraw legal protections, in order to limit the court’s role in adjudicating the merits of the dispute. Unfortunately, this longstanding industrial policy may come at a high price when individuals are victimised for their expressive activities. It is precisely during such a context, when passions are inflamed and feelings running high, that the risks of human rights violations are heightened. Is there scope for improving domestic protections under the ECHR?
Human rights law says that everyone has the right to free speech. This right is protected under Article 10(1) of the ECHR that provides as follows: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. It is generally accepted that different types of speech justify different degrees of protection, with the example of political speech being given as a kind of speech that warrants particularly high protection because of the special value of pluralism in a democracy. The European Court of Human Rights has ruled that the right to freedom of expression extends to the workplace, both against the state as an employer (e.g. Vogt v Germany) and against private employers (e.g. Palomo Sanchez v Spain). The English Court of Appeal also established early on that the rights of the HRA are applicable in the private employment context (X v Y  ICR 1634).
The International Labour Organisation has repeatedly emphasised the importance of civil and political rights, such as the right to freedom of expression, for workers’ rights. The Declaration of Philadelphia (1944) said that ‘freedom of expression and of association are essential for sustained progress’. In a Resolution on trade union rights and civil liberties (1970), the ILO emphasized the value of freedom of expression for trade union rights, ‘in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. In an ILO Report of 1994, it was said that an ‘essential aspect of trade-union rights is the right to express opinions through the press or otherwise. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of their other activities’. These principles have been often reiterated by the ILO.
The Inter-American Court of Human Rights, in its advisory opinion OC-05/85, emphasised the importance of freedom of expression for trade union activity. It said that ‘Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free’.
The Grand Chamber of the ECtHR examined freedom of expression in the context of a workplace dispute in a difficult case which involved offensive speech. In Palomo Sanchez v Spain the applicants were employed as delivery men by a company. They brought several sets of proceedings in employment tribunals to secure their recognition as ‘salaried workers’, in order to enjoy social security rights. They also set up a trade union to protect their interests, which published a newsletter. At some point in the context of the court proceedings, the newsletter included news of a successful tribunal claim against their employer.
What made the case difficult is that the front cover of the publication included a cartoon depicting employees who had testified against the union, queuing under the desk of a manager in order to satisfy him sexually. In the same publication, there was an article with the title: ‘When you’ve rented out your arse you can’t shit when you please’. The newsletter was distributed to people at work and displayed on the union’s noticeboard. The applicants were then dismissed for gross misconduct. In domestic courts, they lost. Courts found that dismissal was not contrary to the right to free speech because the employer could legitimately place restrictions on workers’ speech when it is offensive and humiliating.
In Strasbourg, the Court examined whether their dismissal violated their right to free speech under Article 10, interpreted in light of Article 11 (the right to form and join a trade union). Examining the right to free speech in the context of trade activity, in light of both Articles 10 and 11, is a promising starting point for workers’ rights. It suggests that the Court appreciates the particularities of the employment relation, especially the challenges of free speech in the context of a workplace dispute and trade union activity. This promising start notwithstanding, the majority of the Court found the dismissal fair. It said that ‘in order to be fruitful, labour relations must be based on mutual trust. […] even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer’s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations […]. Moreover, an attack on the respectability of individuals by using grossly insulting or offensive expressions in the professional environment is, on account of its disruptive effects, a particularly serious form of misconduct capable of justifying severe sanctions’.
It is worth highlighting that the Court remarked that the attack was against specific colleagues, rather than as a general criticism of the employer in the context of a dispute, and that the offensive materials were not in the context of a heated and rapid oral exchange. This suggests that a heated exchange on social media might have been covered in light of the reasoning of the majority opinion. However in this case, they accepted that domestic courts were right: freedom of expression in the context of industrial relations should be strongly protected but it is not unlimited.
The Grand Chamber in Palomo Sanchez was divided, though. A powerful and strongly worded dissenting opinion argued that the majority paid insufficient attention to the value of free speech in the trade union context. The industrial dispute in the context of which the comments were made, the dissenting judges argued, should have warranted a high degree of protection. The publication had a trade union connotation and had to be assessed against the background of the industrial dispute. They said that trade unions play the role of a ‘watch-dog’ in a similar way to the press in a democracy. Even though there is a need to protect the reputation of others, the dissent argued that the cartoon did not overstep the boundaries of the Convention, which protects even speech that ‘shocks, offends and disturbs’, as the Court famously ruled in Handyside v United Kingdom. While the cartoon was vulgar and tasteless, it did not involve the depicted persons’ private lives. It was critical of their work-related activities. Their dismissal could have a chilling effect on conduct of trade union freedom, and is particularly harsh in a context of high unemployment.
The majority view in Palomo Sanchez can also be contrasted with the decision of a New York federate appellate court, NLRB v Pier Sixty, LLC (2d Cir. 2017). A worker was dismissed from his job because he posted on his Facebook page, which was open to the public, comments that were vulgar and critical of his supervisor. The court upheld the National Labour Relations Board (NLRB) decision that the applicant’s dismissal violated the National Labour Relations Act (NLRA). The court highlighted that the comments expressed concerns about treatment in the workplace, they were posted in the context of a dispute with the supervisor and a union election, and no other worker had been dismissed in the past for profanity. The court also paid attention to the fact that the comments were made on an online platform that is used for employee communication and organising, not in the presence of customers, and did not disrupt the employment environment.
TULRCA and Freedom of Expression during Strikes
What emerges from the above is that human rights law may support a broader and stronger protection than TULRCA in these instances of disciplinary action because of the exercise of free speech in the trade union context. This is particularly important in the age of social media, when a lot of people lose their jobs because of what they post, and the employers very often use what has been posted on social media as an excuse.
To start with, it is important to be reminded that when striking workers are dismissed for exercising the right to free speech in the trade union context, the two-year qualifying period should not be applicable, in light of Redfearn v UK. The legislative framework of the law of unfair dismissal should be reformed so as to apply from day one when there is an alleged interference with Convention rights, as has been argued here. This would mean that employees could access a tribunal from ‘day one’ for an ‘ordinary’ unfair dismissal claim under s 238. Moreover, because of the interference with Convention rights (Articles 10 together with 11), the test of reasonableness under s.98 of ERA should be interpreted in light of proportionality principles that we find in Strasbourg case law. Articles 10 and 11 of the ECHR can be restricted if there is a legitimate aim, and in a manner that is proportionate to the aim pursued. In this context, this standard of review of the decision to dismiss is higher than the test of reasonableness in Iceland Foods v Jones, and should be applied in light of courts’ duty to interpret legislation in light of the ECHR (s 3 of the HRA). There is already evidence that the courts have taken a more robust line in Article 10 dismissals (see, for example, Hill v Great Tey Primary School Governors). Where those engaged in expressive activities have been singled out for discriminatory dismissal in a protest situation, with the discriminatory dimension restoring ET jurisdiction under s 238, the courts ought to adopt a strict proportionality approach. The close connections between Articles 10 and 11 could also support a purposive interpretation of ‘protected strike action’ under s 238A. Where the reason for dismissal is related to the necessary incidents of a strike, such as expressive protest, that should be treated as included within the scope of the statutory formula.
A distinction between employees and workers is also problematic, when examining the right to free speech in the context of a strike. Given the value of freedom of expression in a trade union context for a democracy, which was highlighted by the dissenting judges in Palomo Sanchez, there is no reason of principle to afford the protection to employees only and not to workers. In Pastorul Cel Bun v Romania, the court took the view that trade union rights should extend all engaged in an ‘employment relationship’. This was to be construed using the broad concept specified in the ILO Recommendation 198 on Employment Relationship. The tight connection between ‘employee’ and ‘unfair dismissal’ is part of the sacrosanct bedrock of UK labour law. Is it now time to extend unfair dismissal protection to ‘workers’ in certain situations engaging fundamental rights, to a broader category of work relations consistent with the ILO Recommendation? This would require statutory reform to implement such an extension, though such a change would seem justifiable for many of the existing ‘automatically unfair’ reasons.
What about detriment that falls short of dismissal? Or the dismissal of workers who are outside the scope of unfair dismissal protection? Can s 146 be used to protect expressive activities during strikes in either of these circumstances under the current law? The apparent fundamental problem may be that the industrial action seems to be excluded from the statutory concept of ‘participation in the activities of an independent union’ because it doesn’t take place at an ‘appropriate time’. Might it be possible to distinguish the activity of striking (excluded from s 146) from other activities that occur contemporaneously with the withdrawal of labour? Such a distinction is intelligible. We are often engaged in a range of activities simultaneously. Imagine a lay trade union official is subjected to a detriment during a strike. The reason appears to be connected to the lay official assisting another worker with an ongoing grievance at work. The provision of representative assistance is a trade union activity, and it is severable from the activity of striking. In a similar way, it should be possible to separate expressive activities occurring during the strike from the striking itself, to support a purposive and inclusive interpretation of s 146.
Another potential problem may be where expression overlaps with strike action. It does not appear to occur ‘at an appropriate time’ if it occurs during time that would (but for the strike) have been work. Ultimately, of course, this is dependent on the specific factual matrix of the dispute. In the ongoing UCU dispute, for example, many university managements communicated their respect for their workers’ exercise of the right to strike. That could be construed as consent by the employer to trade union activities during what would otherwise be working time. Where the social media posts were posted during a strike period but at a time that would not otherwise have been working time (say, at the weekend or during the evening), s 146 protection should apply.
Take the following example which demonstrates that timing can often be a red herring in trade union detriment cases. Suppose a union official speaks to the press about the strike and is disciplined. The strike merely provides the context for the victimisation; it is not the reason why it was taken. In these examples, the exact time when the relevant action was taken is also irrelevant. The activity would have been penalised whether the worker went to the press inside or outside working hours: the phrase ‘at an appropriate time’ is therefore redundant in this situation. In such circumstances, we think there is little difficulty in construing s.146 so as to be compatible with Article 10. Admittedly, there is some clumsiness in all of this. It might be better to formulate a new statutory provision on detriment short of dismissal that is specifically addressed to speech during strikes, where protection is subject to a proportionality standard. But we should not underestimate the protective scope of the current s 146, interpreted in accordance with Articles 10 and 11.
Some cases have also suggested that activities that are ‘wholly unreasonable, extraneous or malicious’ may also be excluded from protection (Lyon v St James Press Ltd  ICR 413). This might appear to exclude ‘offensive’ speech from the remit of statutory protection. Later cases have emphasised that some criticism of management may reasonably be expected during union recruitment meetings (Bass Taverns Ltd v Burgess). But these cases pre-dated the HRA. From an ECHR perspective, whether this limitation (which is not expressly stated in the legislation) can be challenged is less clear, given the central importance accorded to trust and good faith in the ECtHR’s case law. However, the ECtHR has been receptive to the idea that workers’ right to freedom of expression should be protected strongly in the context of trade union activity.
The limitations to this especially strong protection, according to the majority in Palomo Sanchez, arise when speech is offensive, and particularly perhaps when the offensive speech turns against specific co-workers. This is rooted in a highly communitarian view of good faith duties of loyalty and trust in the employment relationship, discussed here. In line with the dissenting opinion, we favour a more contextual and pluralistic view of the good faith duty, and one that allows space for vigorous dissent. This is more attuned to the conflicts of interest and power asymmetries that pervade the workplace and employment relationships. In a strike situation, the liberal principle of toleration should take on a heightened significance.
According to the dissent in Palomo Sanchez, the only limitations to the offensive speech in this context would arise if the publication was not relevant to the industrial dispute but involved managers’ or co-workers’ private lives. In our view, the approach of the dissent is to be preferred. It also fits with Warby J’s robust protection of Article 10 rights in Thames Cleaning and Support Services Limited v United Voices of the World, Petros Elia. This could lead to a realignment of UK law’s approach to strike action. Beneath the surface of the statutory rights in TULRCA is a basic institutional assumption of collective laissez-faire. This is that the courts should avoid becoming embroiled in the merits of industrial disputes, and should maintain a stance of neutrality between the warring parties. Where fundamental rights are violated, the stance of neutrality represents an abdication of judicial responsibility. Paradoxically, perhaps, the occasion of the strike may be a context where judicial intervention is most warranted to support the human rights of workers. That has been evident in the some of the domestic ‘collective’ injunction cases, such as United Voices of the World. The next step should be to translate this into the individual statutory protections. This will be achieved through statutory reforms (e.g. on the qualifying period of continuous employment or the extension of unfair dismissal protection to workers) and supportive judicial interpretation (e.g. on the meaning of ‘activities of an independent trade union at an appropriate time’).
About the authors:
Alan Bogg is Professor of Labour Law at the University of Bristol. He is Co-Director of the Bristol Centre for Law at Work. Previously, he was Professor of Labour Law at the University of Oxford.
Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws. She is co-editor of Philosophical Foundations of Labour Law with Hugh Collins and Gillian Lester.
(Suggested citation: A Bogg and V Mantouvalou, ‘Free Speech and Strike Action’, UK Labour Law Blog, 20 March 2020, available at https://wordpress.com/view/uklabourlawblog.com)