Referencing & Citations Guide For Law Essays (Practical Example)
Instead of throwing hypotheticals at you, we have decided to give you a practical example of how to reference a law essay. Below is a first class law essay from a Russell Group university undergraduate student. Please do not copy this essay. This law essay is meant to give you an idea of how to reference and structure your law essay.
Assess the extent to which it can be claimed that United Kingdom Labour Law provides for effective exercise of a right to strike.
It is useful to begin by noting at the outset that there is no explicit right to strike in the United Kingdom (UK) law. As Lord Denning famously stated in 1979, ‘Parliament granted immunities to the leaders of trade unions, it did not give them any rights. It did not give them the right to break the law or to do wrong by inducing people to break contracts. It only gave them immunity if they did.’[1] Instead, for a member to advance their interests through industrial action, demands compliance with statutory procedures that can confer immunity from tort liability for the union as well as some protection from dismissal for individual. Failure to follow the procedures in accordance with the statutory requirements carries the risk of an injunction which is an endgame. The notification requirements undermine the impact of action by giving employers time to prepare contingency plans in anticipation of the industrial action which therefore reduces the effectiveness of the right to strike. The developments in the balloting and ‘notice’ area will be illustrated and thereafter put into example. The recent cases of British Airways plc v Unite the Union[2], EDF Energy Powerlink Ltd v RMT[3] and Metrobus Ltd v UNITE the Union[4] will aim to illustrate the uncertainty and vagueness in the current balloting and ‘notice’ procedures that the attainment of immunity from tort liability is next to impossible. It will then be shown that current law regarding the right to strike is in compliance with Human Rights Act 1998 and interpreted in the light of Article 11. However, the onerous statutory requirements regarding notices and balloting procedures have drawn much criticism from international human rights and labour standards. Demir and Baykara v Turkey[5] and Enerji Yapi-Yol Sen v Turkey[6] cases of European Court of Human Rights[7] had showed a strict adherence to international human rights and labour standards on the way to recognising collective bargaining and right to strike under Article 11. International Labour Organisation[8] and European Social Charter[9] of 1996 are now important steps in building up the scope of ILO and ESC rights and in the future if UK chooses to interpret ‘the right to strike’ under Article 11 of European Convention on Human Rights and Fundamental Freedoms[10], it may be found in breach.
Industrial action for which trade union bears the entire liability is accorded statutory immunity only if it has a majority of members voting in the ballot. Sections 226A and 234A of Trade Union Labour Relations (Consolidation) Act 1992[11] produced a major shift in the law. In 1993 ‘notice’ requirement was stipulated by the Trade Union Reform & Employment Rights Act 1993[12] and was aimed to promote ‘Democracy in Trade Unions’.[13] Section 62 of TULRCA has given trade union members a right to seek a court order restraining the union from coercing them to take part in industrial action where no ballot was held. The TURERA had brought about a change of focus: the legislation was no longer viewed in the traditional sense underpinning democratic voting of trade union members but was more concerned with protecting employers from strike action. It is now worth examining the changes brought about since the Employment Relations Act 1999[14] to Employment Relations Act 2004[15] to see how this shift occurred.
Up until the decision in Blackpool & the Fylde College v NATFHE[16] unions were required to provide the employer with the names of members who were to be balloted or called to take industrial action. The ERA99 substituted this requirement with the provision of ‘such information in the union’s possession as would help the employer to make plans and bring information to the attention of the ‘affected employees’.[17] It is worth referring to paragraph 14 of the Code of Practice on Industrial Action Ballots and Notice to Employees 2000[18] to express the government’s intention behind the changes to the ‘notice’ requirements which is to ‘enable [the employer] to warn his customers of the possibility of disruption so that they can make alternative arrangements’.[19] Reliance on the code ‘could deprive the threat of industrial action of most or all of its coercive force’[20] especially in the light of the fact that most trade unions derive their bargaining power from the ability to make credible threat of industrial action. In London Underground Ltd v RMT[21] Robert Walker LJ explained that producing ‘information in the union’s possession’ is more onerous than simply supplying all their members’ names and meant that union could be faced with an obligation without defined boundaries which is practically impossible. Sections 22 and 25 of the ERA04 were enacted to simplify the law by introducing the ‘lists and fugures’[22] requirement in the ‘notice’ to hold a ballot on industrial action and ‘notice’ of industrial action. The ‘lists’ requirement is based on categories of workers and their workplace and the ‘figures’ requirement mainly concerns the total number of workers concerned, number in each category and the number at each workplace.[23] The uncertainty over ‘information in union’s possession’ was refined through sections 226A(2E) and 234(3E) of TULRCA 1992 to include information held in a document, electronic or any other form, and in the possession or under the control of an officer or an employee. According to Simpson the need to provide details information through ‘lists and figures’ to employers thus reduces the effectiveness of the right to strike.[24]
This essay will now briefly consider the changes brought about by the ERA04 in the area of entitlement to vote in the ballot. Section 232A was introduced by the ERA04 to amend s27(1) of TULRCA by entitling only those to vote, who would be induced to partake in an industrial action by the union. Linked to this issue is an important question of whether the union’s call for industrial action adhered to the requirements of s232A of TULRCA in support of a valid ballot, in the light of the fact that union’s membership records were not synchronised with people leaving or changing jobs and failure to include people who should have been balloted? In P v NASUWT[25] two members who had recently joined the school were excluded from a ballot which did not influence the outcome of the ballot as the ballot was 26 to 1 in favour of an action and 26 to 0 in favour of a strike. Despite the failure to ballot insignificant numbers, immunity from tort liability was still granted through s 323B of TULRCA that allows the union to disregard ‘small accidental failures to comply with provisions’.
Drawing to case law I will now illustrate the complexity of the current balloting rules that renders compliance almost impossible,[26] and technical infringements can undermine action that is otherwise lawful, providing a springboard for injunctions, or rendering the union financially liable and the employee unprotected from dismissal.
In Metrobus[27] it was decided that UNITE did not comply with s 231A of TULRCA as it did not give notice until after 48 hours after the close of the ballot which failed to be ‘as soon as reasonably practicable’. The second issue concerned information contained in the ballot and strike notices. There was a dispute as to the statutory provision of ‘notice’ containing ‘lists and figures’. There was a mix of check-off and non check-off members at the union. UNITE provided the ‘lists and figures’ but failed to show how they were arrived at. Thus the disputed question was whether union could choose either to provide ‘lists and figures’ with an ‘explanation’ or information mentioned in 321A(2C) of TULRCA and whether this was in relation to check-off and non-check-off members or only check-off members. Lloyd LJ was disinclined to favour Hendy’s view since ‘in the case of check-off employees, the employer can reasonably be expected to be able to ascertain from its payroll records, as a minimum, which of its employees are members of the union, into which categories of worker they fall, and at which workplaces they are based’.[28] Regarding the non-check-off employees, the employer could not get this kind of information. In EDF Energy[29]it was held that the ballot notice did not comply with the requirement that it must contain ‘a list of the categories of employee to which the employees concerned belong’.[30] The notice did specify that RMT intended to ballot ‘engineer/technician’ members, but Blake J held that such categorisation did not meet s 226 of TULRCA due to its generality. Blake J took the view that there was an imminent threat of a strike, and EDF thus was not sufficiently aware which categories of its employees would be called to partake in the strike and so could not minimise the disruption of the strike. Furthermore, Blake J held that union’s inability to provide subcategories of the trade of their members and RMT’s categorisation of members as ‘engineers/technicians’[31] was no defence. In British Airways[32] the key issue was that UNITE erroneously included in the ballot notification and erroneously balloted several hundred members who it knew would no longer be employed by BA at the time of the strike. This mainly applied to those who took voluntary redundancy. UNITE relied on the statutory defences that the information provided in the ballot and strike notices was as accurate as was ‘reasonably practicable’[33]; and that any failure in relation to the ballot itself was accidental and had no effect on the result of the ballot.[34] Interestingly Mr Hendy QC invites Mrs Justice Cox to adopt a purposive construction of the statutory provisions by referring to London Underground Limited v NURMT[35]where Millett LJ said that Parliament’s objective was neither to undermine the democratic requirement of a secret ballot by making life more difficult for trade unions nor was it for the ‘protection of the employer or the public’, it was for the ‘protection of the union’s own members’. Mrs Justice Cox however found against UNITE given that it did not do everything that was ‘reasonably practicable’ and suggested that UNITE could have taken more actions to ‘seed out’ those members who had taken voluntary redundancy through the hotline, provision of clear instructions of entitlement to vote just to name a few. Mr John Hendy QC however argued that UNITE even attempted to contact BA to get information regarding workers who are to leave.
In Metrobus[36] Mr Hendy’s second ground was based on the Human Rights Act 1998[37] and the requirement to read statutory requirements so that they comply with Article 11 of the ECvHR. The right of association under Article 11 ECvHR could not thus be exercised. Mr Hendy made reference to cases of the European Court of Human Rights. In Demir and Baykara[38]right to collective bargaining and in Enerji[39] right to strike were recognised. Lloyd LJ however saw the Enerji[40] case as ‘less fully articulated judgment’[41] and thus it is not correct to conclude that it was correct. Lloyd LJ went on to say that a balance must be maintained between the rights of workers under Article 11 ECvHR and the rights of employers guaranteed under Article 1 of the First Protocol of the ECvHR. It was thus reasonable for unions to provide ‘notice’ to ballot as was reasonably practicable. It is also reasonable to say how figures were arrived at. Ruth Dukes proposes that it is possible to argue that UK law ‘does recognise a right to strike, albeit indirectly, through the Human Rights Act 1998 and Article 11 of the ECHR’.[42] Irrespective of the development of case law towards recognition of a right to strike under the ECvHR, Maurice Kay LJ instead reminds us that in UK, ‘the right to strike has never been much more than a slogan or a legal metaphor’.[43] English Courts have shown a reticence to engage with arguments contained in both international human rights and labour standards. Whereas the ECtHR has paid increasing attention to international law and Demir and Baykara[44] used a stream of international law to depart from previous cases under Article 11 under ECvHR and argue that Article 11 does recognise collective bargaining and similarly in Enerji,[45] the right to strike. This could in effect have very significant implications for UK law. In Demir and Baykara[46], the court held that despite the fact that states must remain free to develop their systems, all such systems must be consistent with the requirements of the ILO and the ESC.[47] Ewing and Hendy therefore propose that ‘the most notable aspects of the decision is the importance attached to both ILO and Council of Europe standards in determining the content of the right to trade union membership guaranteed by Article 11’.[48] ILO and ESC are now ‘important steps in building up the scope of ILO and ESC rights’[49] and in the future, if UK Court chooses to interpret the nature of the right to strike as protected by Article 11 of ECvHR, UK could inevitably be found to be in breach of Article 11. In British Airways[50] Mrs Justice Cox leaves us with a prediction that sooner or later, the extent to which ‘the current statutory regime is in compliance with those international obligations and with relevant international jurisprudence will fall to be carefully reconsidered.’[51]
In conclusion, Metrobus[52] outlines the fact that despite the landmark decisions in the recent ECtHR jurisprudence, the courts in the UK are not yet prepared to treat the ILO and ESC standards as a yardstick for the legitimacy of collective action. Nevertheless, the severe procedural restrictions in UK on the right to strike are in line with Article 11 of ECvHR but are not yet consistent with ILO and ESC standards. As Mrs Justice Cox helpfully pointed out that sooner or later these issues will be scrutinised. Social Rights Committee of the Council of Europe and the ILO Committee of Experts have shown their long-lasting concerns about restrictions on the right to strike in the UK, which British governments have failed to adequately address and which may in effect provide fresh ground for applications to ECtHR.[53] Ewing and Hendy point out the there is now a comprehensive right to bargain and to strike (based on ILO and ESC standards) and by virtue of HRA, these standards should now be enforceable in British courts, with a ‘new statutorily based right to strike’ (based on ILO and ESC standards)’. Both authors do realise that this will be a difficult process and in turn may require ‘another decision...of the Strasbourg court as a midwife to the birth of this new era in the field of labour law in the UK’.[54] This essay pointed out the changes to legislation, mainly from 1999 to 2004, so as to simplify the requirements for trade unions. Yet, recent case law was used to illustrate that the changes proved to be to a certain degree even more problematic as it was even more difficult for trade unions to satisfy the balloting and notice requirements due to their vagueness and generality. Despite the changes made to legislation, the position of the right to strike in the UK ‘fails to break the thread which leads the organisation of industrial action into legal maze.’[55] Extensive requirements to take steps to minimise the impact of the strike has lead to a ‘sad reflection of the continuing demise of the State’s respect for the values underpinning an effective system of collective labour relations’.[56] These impossible obligations will inevitably give rise to concerns regarding compatibility of UK law with ILO Convention 87, ESC and with ECvHR, Article 11. The Demir and Baykara[57]and Enerji[58] decisions are clear examples of ‘socialisation of civil and political rights’[59] and where ‘human rights have established their superiority over economic irrationalism and “competitiveness” in the battle for the soul of labour in which public law has triumphed over private law’.[60] These decisions can thus ‘walk with a real swagger as soft law with a hard edge’.[61] These decisions are a ‘symptom of trade union weakness rather than strength’ and it remains to be seen ‘how far in practice they penetrate beyond the boundaries of countries such as...UK, distinguished by low levels of trade union protection’.[62]
Appendices
Table of Abbreviations
CA Court of Appeal
ECJ European Court of Justice
ECvHR European Convention on Human Rights & Fundamental Freedoms
ECtHR European Court of Human Rights
The EU Charter EU Charter of Fundamental Rights
ESC European Social Charter (Rev.1996)
ERA99 Employment Relations Act 1999
ERA04 Employment Relations Act 2004
ILO International Labour Organisation
TULRCA Trade Union & Labour Relations (Consolidation) Act 1992
TURFB Trade Union Rights & Freedoms Bill 2006
TURERA Trade Union Reform & Employment Rights Act 1993
Primary Sources
Statutes of the UK Parliament
Trade Union and Labour Relations (Consolidation) Act 1992
Trade Union Reform and Employment Rights Act 1993
Employment Relations Act 1999
Employment Relations Act 2004
International Instruments
ILO Convention (No. 87) concerning the Freedom of Association and Protection of the Right to Organise and Convention
ILO Convention (No.98) concerning the Application of the Principles of the Right to Organise and Bargain Collectively
European Community Materials
Charter of Fundamental Rights of the European Union 2000 C/364/01
European Social Charter 1961
European Convention for the Protection of Human Rights and Fundamental Freedoms
UK Cases
Blackpool & Fylde College v NATFHE [1994] IRLR 227 CA
British Airways plc v Unite the Union [2009] EWHC 3541 (QB).
BT plc v CWU [2003] IRLR 58
EDF Energy Powerlink Ltd v RMT [2009] EWHC 2852 (QB).
Express Newspapers v McShane [1979] ICR 210.
London Underground Ltd v NURMTW [2001] IRLR 228 CA
Metrobus Ltd v UNITE the Union [2009] IRLR 851.
Midland Mainline v RMT [2001] IRLR813 CA
OBG Ltd. v Allan [2007] UKHL 21
P v NASUWT [2003] IRLR 307 HL
Taff Vale Railway Company v Amalgamated Society of Railway Servants [1901] AC 426 HL
University College London Hospitals NHS Trust v UNISON [1999] IRLR 31 CA
European Court of Human Rights
Demir and Baykara v Turkey (App no 34503/97) (2006) ECHR.
Enerji Yapi-Yol Sen v Turkey (App No 68959/01) (2009) ECHR.
UNISON v UK [2002] IRLR 497 ECHR
Secondary Sources
Books
- Deakin & G. Morris, Labour Law (4th ed., Hart Publishing, Oxford 2005)
- Kidner, (Ed.) Blackstone’s Statutes on Employment Law (16th ed., OUP, Oxford 2006)
- Painter & A. Holmes, Cases & Materials on Employment Law (6th ed., OUP, Oxford 2006)
- Slade, Tolley’s Employment Handbook (19th ed., Lexis Nexis Butterworths, London 2005)
- Smith & G. Thomas, Smith & Wood’s Employment Law (9th Edition, OUP, Oxford 2007)
Journal Articles
K.D. Ewing ‘The Function of Trade Unions’ ILJ 2005, 34(1), 1-22
D. Ewing and J. Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 ILJ 2-51.
Hendy ‘Contents of a proposed Bill’ Federation News GFTU/IER Vol56 No2 Autumn 2006
Hendy ‘The Human Rights Act, Article 11, and the Right to Strike’ EHRLR 1998, 5 582-616
Ruth Dukes, ‘The right to strike under UK law: not much more than a slogan?’ (case note) [2010] ILJ 82.
Simpson ‘Trade Disputes and Industrial Action Ballots in the Twenty First Century’ ILJ
2002, 31(3) 270-281
Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 331-337
Simpson ‘Economic Tort Liability in Labour Disputes: The Potential Impact of the House of Lords Decision in OBG Ltd. v Allan’ ILJ 2007 36(4) 468- 479
Leary, ‘The Paradox of Workers' Rights as Human Rights’, in L. Compa and S. Diamond (eds), Human Rights, Labor Rights and International Trade (University of Pennslyvania Press, Philadelphia 2003) 22.
Books
Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, Oxford forthcoming).
Publications & Guides
Code of Practice on Industrial Action Ballots and Notice to Employers – PL962 (Rev.2) 2005
Fairness At Work White Paper Cm 3968 May 1998
Other Materials
TUC ‘Proposal for a Trade Union Freedom Bill’ – March 2006
TUC ‘Briefing on the draft Trade Union Freedom Bill’ – January 2007
[1] Express Newspapers v McShane [1979] ICR 210.
[2] [2009] EWHC 3541 (QB).
[3] [2009] EWHC 2852 (QB).
[4] [2009] IRLR 851.
[5] (App no 34503/97) (2006) ECHR.
[6] (App No 68959/01) (2009) ECHR.
[7] Hereafter ECtHR.
[8] Hereafter ILO.
[9] Hereafter ESC.
[10] Hereafter ECvHR.
[11] Hereafter TULRCA.
[12] Hereafter TURERA.
[13] Cmnd 8778, 1983).
[14] Hereafter ERA99.
[15] Hereafter ERA04.
[16] [1994] ICR 648.
[17] TULRCA 1992, ss 226A(2)(c), 234A(3)(a).
[18] Hereafter 2000 Code.
[19] Code of Practice on Industrial Action Ballots and Notice to Employees 2000, para 14.
[20] B.Simpson, ‘Code of Practice on Industrial Action Ballots and Notice to Employers 2000’, (2001) 30 Industrial Law Journal 194. 197.
[21] [2001] ICR 647, 661.
[22] In British Telecommunications plc v Communication Workers Union [2004] IRLR 58 ‘strike action by all members in specific categories on specific dates’ was held not to be detailed enough for an employer to ‘make plans’ under the 1999 changes brought about by the ERA. The ERA 2004 now stipulates that these details must be explicit and thus shows government’s increased assistance of employers.
[23] TULRCA 1992, (ss 226A(2)(c), (2A)-(2I); 234(5)(a), (3A)-(3F).
[24]B Simpson ‘Strike Ballots and the Law: Round Six’ (2005) ILJ 34(4), 333.
[25] [2003] ICR 386 HL.
[26]J.Hendy & G.Gall ‘British TU Rights Today and the TU Freedom Bill’ 267
[27] Metrobus (n 4).
[28] Metrobus (n 4) [86] (Lloyd).
[29] EDF Energy (n 3).
[30] TULRCA 1992, s 226A(2A)(a)
[31] Considered to be accurate as such categorisation is established in the railway industry and adopted by the Institution of Railway Signalling Engineers.
[32] British Airways (n 2).
[33] TULRCA 1992, ss226A (2D), 234(3D)
[34] TULRCA 1992, s232B.
[35] [1995] IRLR 636 [37] (Millett LJ).
[36] Metrobus (n 4).
[37] Hereafter HRA.
[38] Demir and Baykara (n 5).
[39] Enerji (n 6).
[40] Enerji (n 6).
[41] Enerji (n 6) [35].
[42] Ruth Dukes, ‘The right to strike under UK law: not much more than a slogan?’ (case note) [2010] ILJ 82.
[43] Metrobus (n 4) (Maurije Kay LJ).
[44] Demir and Baykara (n 5).
[45] Enerji (n 6).
[46] Demir and Baykara (n 5).
[47] Demir and Baykara (n 5) [147]-[148].
[48] K. D. Ewing and J. Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 ILJ 2-51.
[49] Ewing and Hendy (n 48) 2-51.
[50] British Airways (n 2).
[51] British Airways (n 2) (Mrs Justice Cox).
[52] Metrobus (n 4).
[53] Report of the Committee of Experts on the Application of Conventions and Recommendations (2009): http://www.ilo.org/ilolex/gbe/ceacr2009.htm (CEACR: Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) United Kingdom (ratification: 1949) Published: 2009).
[54] Ewing and Hendy (n 48) 2-51.
[55] B.Simpson, ‘Code of Practice on Industrial Action Ballots and Notice to Employers 2000’, (2001) 30 Industrial Law Journal 194. 197.
[56] Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 331-337
[57] Demir and Baykara (n 5).
[58] Enerji (n 6).
[59] V. Leary, ‘The Paradox of Workers' Rights as Human Rights’, in L. Compa and S. Diamond (eds), Human Rights, Labor Rights and International Trade (University of Pennslyvania Press, Philadelphia 2003) 22.
[60] C. Fenwick and T. Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, Oxford forthcoming).
[61] Ewing and Hendy (n 48) 2-51.
[62] Ewing and Hendy (n 48) 2-51.
