Supreme Court issues decision on protection from detriment for striking workers

The Supreme Court in the case of Secretary of State for Business and Trade v Mercer has held that the UK law in respect of protecting striking workers from detriment is incompatible with human rights law.

Background

Ms Mercer (“the Claimant”) was a care worker who also held a position as a workplace representative for a trade union. She planned and took part in lawful strike action. She was subsequently suspended on basic pay. This meant that she lost the opportunity to work overtime and was not allowed to contact colleagues.

The Claimant brought a claim against her employer on the grounds that her suspension was an act of detriment short of dismissal with the aim of deterring her from taking part in trade union activities. Her employer’s case was that the suspension was due to her conduct unrelated to her trade union activities and that, irrespective of this, taking part in industrial action was not protected under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).

The Law

Section 238A of TULRCA makes it automatically unfair to dismiss an employee for taking part in official industrial action which is protected.

Section 146 of TULRCA protects workers from being subjected to detriment for the sole or main purpose of deterring them from taking part in “the activities of a trade union at an appropriate time”.

The Employment Appeal Tribunal (“EAT”) had held in previous cases  that the term “activities of a trade union” does not include participation in industrial action. The term “an appropriate time” is also defined as a time outside of working hours – unless the employer consents otherwise. This typically therefore will not cover industrial action which would generally take place during working hours.

So, although workers are protected from detriment for taking part in trade union activities, there is no corresponding provision under TULRCA which prohibits employers subjecting employees to detriment for taking part in industrial action.

Article 11 of the European Convention of Human Rights (“EHRC”) states that:

“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

It goes on to state that the right can only be restricted to the extent necessary for a democratic society.

Decision

The Employment Tribunal held that the Claimant could not bring a claim under section 146 TULRCA as industrial action was not covered under this provision. The Claimant argued that TULRCA should be interpreted in a way to include industrial action taking into account Article 11 of the EHRC and Section 3 of the Human Rights Act 1998 which requires domestic legislation to be read and given effect in a way which is compatible with the EHRC.

The tribunal rejected this approach and held that TULRCA had been drafted in such a way to draw a clear distinction between industrial action and trade union activities. However, on appeal from the Claimant, the EAT reversed the decision of the Tribunal and adopted the interpretation suggested by the Claimant. The Secretary of State was granted permission to appeal this decision to the Court of Appeal, which it subsequently did. The Court of Appeal then reversed the EAT’s decision.

The case came before the Supreme Court which agreed that section 146 TULRCA could not be interpreted in a way to include protection against a detriment for participating in industrial action. However, it did make a declaration that section 146 of TULRCA is incompatible with Article 11 of the EHRC due to the lack of protection afforded to workers against detriment for taking part in industrial action.

Comment

It is relatively uncommon for the Supreme Court to make such a declaration of incompatibility, but it does not change the current law. Parliament will now have to reconsider the legislation in light of this ruling, however, given the upcoming general election, it is unlikely that any changes will be imminent.

Case reference: Secretary of State for Business and Trade v Mercer [2024] UKSC 12