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The right to strike and the Human Rights Act 1998

Article 11 of the European Convention on Human Rights (introduced into English law by the Human Rights Act 1988) provides for the right of individuals to join trade unions for the protection of their interests, but does not explicitly provide for a ‘right to strike’.21 The ability to take strike action is, however, an essential means by which members’ interests are protected; such as where a collective agreement needs to be enforced or to deter the victimisation of union members. The European Court of Human Rights acknowledged this view in Schmidt and Dahlstrom v Sweden,22 but went on to specify that the exercise of industrial action could be legitimately limited (although not extinguished) by the requirements of national law. In Gustafsson v Sweden,23 the applicant employer (who refused to join the relevant employers’ association and so be bound by a collective agreement) complained of a lack of State protection from consequential industrial action that interfered with his Art 11 right of non-association. The court held that there was no violation of Art 11 as a trade union’s right to strike and so impose economic pressure – in order to protect their members’ interests by forcing the employer to comply with a collective agreement – takes precedence over the employer’s competing right of nonassociation and subsequent refusal to engage in collective bargaining. This majority decision did not go so far as to explicitly support union use of the strike weapon without restrictions, but is implicit support for the legality of trade union action in pursuant of legitimate aims – such as the enforcement of collective bargaining.