London Borough of Wandsworth v Vining and others
In London Borough of Wandsworth v Vining, the Court of Appeal (The Master of the Rolls, Beatson and Underhill LJJ) has held that the police service exception in s.280 Trade Union and Labour Relations (Consolidation) Act (‘TULRCA’)1992 amounts to unlawful interference with UNISON’s rights under Article 11 of the European Convention on Human Rights (‘ECHR’). Accordingly, the section had to be read down compatibly with Article 11 so that UNISON were not precluded from bringing a claim in the Employment Tribunal complaining about a failure to consult over collective redundancies.
Section 280 excludes from all rights conferred by TULRCA 1992 – including the right in s.188 for trade unions to be consulted in the event of collective redundancies – all employees and workers in police service, defined as ‘service as a member of a constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable’.
The individual Appellants, Mr Vining and Mr Francis, were employed by the London Borough of Wandsworth as parks constables. In doing that job, they had been attested as constables and had the powers of a constable to enforce park by-laws – but not any of the wider powers of a constable. They were dismissed as part of a mass redundancy exercise when the Metropolitan Police took over Wandsworth’s parks police service. UNISON complained about the adequacy of the consultation exercise in relation to those redundancies.
In London Borough of Redbridge v Dhinsa and McKinnon  ICR 834, the Court of Appeal held that s.200 Employment Rights Act (‘ERA’) 1996 – which is identically worded to s.280 TULRCA 1992 – applied to parks constables, with the result that they could not bring unfair dismissal claims in the ET. In contrast however to constables employed by the British Transport Police, the Civil Nuclear Constabulary and the Ministry of Defence Police, parks constables do not have the right to the benefit of the statutory scheme derived from the Police Act 1996 which sets out the procedure which has to be followed in dismissing an officer. They also do not belong to Police Federations which have a statutory right to consultation.
The Appellants in Vining challenged the police service exclusion in s.200 ERA and s.280 TULRCA 1992 as amounting to unlawful interference respectively with Article 8 (right to private and family life) and Article 11 (freedom of association) read with Article 14 (prohibition on discrimination).
The Master of the Rolls, giving the judgment of the Court, held that the union’s right to be consulted over redundancies conferred by s.188 TULRCA 1992 was one of the ‘essential elements’ of Article 11. The right to collective bargaining was an aspect of Article 11 and the objects to be achieved by consultation could bring it within that definition. Alternatively, consultation was so closely analogous to collective bargaining that it should be regarded as an essential element of Article 11.
Accordingly, as consultation about mass redundancy was a right falling within Article 11, the UK had a positive obligation to secure the effective enjoyment of that right. The complete exclusion of employees in police service or their unions from the right to consultation afforded by s.188 TULRCA 1992 amounted to a breach of Article 11. Although the Court considered that it was not able to formulate a draft amendment to s.280 TULRCA 1992 to distinguish definitively between those whose exclusion was justified or not, it was sufficient to state that the provision did not apply to parks constables.
As UNISON won on its Article 11 argument, the Court did not decide the interesting questions of whether a particular occupation can amount to ‘another status’ for the purposes of Article 14 so as to afford protection against discrimination on the basis of that occupation and whether it was open to UNISON to complain that it had been discriminated against on the basis of the occupation (status) of its members.
The complaint about the dismissals of the individual Appellants failed because, according to the Strasbourg case-law, the consequences of their dismissals for redundancy were not sufficient to engage Article 8 or to fall within the ambit of Article 8 and Article 14. The Court urged the Government to review the position whereby parks constables – and anyone else in police service – have no right to challenge the fairness of their dismissals at all as anomalous and an apparent injustice.
The consequences of the judgment are of interest both to those involved in cases about ‘police staff’ and beyond.
First, s.280 TULRCA 1992 cannot exclude from the right to consultation over redundancies those who are parks constables – and in principle anyone else in police service who have no alternative consultation rights. Further, anyone dismissed from police service who is excluded by s.200 ERA 1996 from pursuing an unfair dismissal claim will be able to challenge that exclusion as an unlawful interference with their Article 8 rights, dependent on the reasons for that dismissal.
More broadly, the Court in Vining has reaffirmed that Article 11 rights belong both to the union and its members. The recognition of the right to consultation as an essential element of Article 11 – and the prospect that occupation is a status which protects against discrimination – is also a powerful tool for unions outside the scope of s.188 TULRCA 1992 to pursue human rights challenges to failed or deficient consultation exercises.
Betsan Criddle was instructed by UNISON Legal Services (Shantha David) for the Appellants.
A copy of the judgment is available by clicking here.
Unison, trade union, police officers, park constable, vining, employment
William Meade (Senior Clerk)