280. Total union membership was about 10,500,000 in December 1987. This represents about 36.6 per cent of the working population. At the time of the second periodic report, 39.3 per cent of the working population were members of unions.
281. The Government supports both the positive freedom to associate and the negative freedom not to associate. This can be seen from the statement in paragraph 2.23 of the White Paper, "Employment for the 1990s", published on 5 December 1988, that "the Government believe that people should be free to choose for themselves whether or not they belong to a trade union".
282. Since the submission of the second report, increased statutory protection has been introduced for employees who are not members of a trade union. The increased protection, which is described below, is contained in the Employment Act 1988.
Non-membership of a trade union
283. Section 11 of the Employment Act 1988 provides that dismissal of an employee for not being a member of a trade union is unfair in all circumstances. It also gives employees protection in all circumstances against action short of dismissal to compel them to be union members. If an employee considers that he has been dismissed, or has suffered action short of dismissal, in contravention of these rights he may complain to an industrial tribunal, which has the power to award substantial compensation or, where appropriate, order reinstatement. Legislation does not define what constitutes action short of dismissal, and it would be for an industrial tribunal to decide whether an employee had suffered such action.
Action short
of dismissal might, for example, cover discrimination in promotion, transfer or opportunities for training, or threats of dismissal or redundancy.
Trade union membership and activities
284. The Trades Union Congress (TUC) presented a complaint to the International Labour Organisation (ILO) in February 1984 (case No. 1261) that the United Kingdom had violated articles 2, 3, 4 and 5 of the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), by denying staff employed at the Government Communication Headquarters (GCHQ) the right to belong to a trade union.
285. The Committee on Freedom of Association found that the action taken by the Government was not in conformity with Convention No. 87. However, the Government contends that Convention No. 87 cannot be viewed in isolation from Convention No. 151, which provides (in article 1.2) that the scope of the Convention's application to staff whose duties are of a highly confidential nature shall be decided by national laws and regulations. The ILO Committee of Experts has acknowledged that complex legal issues are involved in the interrelation of the conventions. The Court of Appeal in the United Kingdom has taken the view that article 1.2 of Convention No. 151 takes precedence over Convention No. 87. Accordingly, the Government does not consider that its actions at GCHQ represent a breach of its obligations under Convention No. 87.