Trade union legislation and human rights

07 May 2024

Does UK Trade Union legislation breach workers’ human rights by failing to provide striking workers with protection from sanctions short of dismissal?

Yes, held the Supreme Court when it handed down its judgement last week in the case of Secretary of State for Business and Trade (Respondent) v Mercer (Appellant).

Mrs Mercer worked for Alternatives Future Group and was a workplace representative for the recognised Union and helped plan and took part in lawful strike action in a dispute over payments for sleep in shifts. She was subsequently suspended by her employer when she left her shift on two occasions and had spoken to the press which could have breached confidential information and brought the company into disrepute. The effect of the suspension was that she was removed from the workplace whilst the industrial action was in progress. Whilst suspended she received basic pay but was unable to earn any overtime pay, she would normally receive and could not take part in subsequent strike action.

Mrs Mercer brought a claim in the Employment Tribunal on the basis that she had suffered a detriment in breach of Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) on the basis that suspension was a detriment imposed on her for the sole or main purpose of deterring her from taking part in industrial action.

Section 146 protects workers from detrimental treatment if the sole or main purpose is to prevent or deter them from taking part in trade union activities, or to penalise them for doing so. However, this protection only applies if those activities take place at “an appropriate time” which is defined as a time outside of the employee’s working hours, or within working hours with the employer’s consent. In reality an employer wouldn’t consent to industrial action which generally takes place during a worker’s working hours. It does not expressly provide protection from detriment for participating in lawful strike action.

The Employment Tribunal held that section 146 did not protect workers from detriment short of dismissal for participation in lawful industrial action and whilst the lack of protection would amount to a breach of a workers right to freedom of assembly and association which guarantees a right to strike (Article 11 of the European Convention on Human Rights), section 146 could not be read in a way that was compatible with that right.

Mrs Mercer appealed the decision to the Employment Appeal Tribunal. The EAT concluded that the lack of protection under TULRCA did breach Article 11 rights, and that it was possible to read section 146 in a way which was compatible by reading additional words into the definition of appropriate time.

The Government intervened and appealed the decision to the Court of Appeal. The Court held that as Parliament had purposely excluded lawful industrial action from the scope of protection under Section 146 and that it could not be interpreted compatibly with Article 11 but refused to make a declaration of incompatibility due to sensitive policy issues.

Mrs Mercer appealed the decision to the Supreme Court who have now made a declaration that section 146 is incompatible with Article 11 ECHR.

Whilst section 146 is still valid and enforceable and therefore only protects an employee from unfair dismissal for participation in industrial action and an employer may subject an employee to a detriment, it is highly likely that Parliament will now look to legislation to introduce new protection for workers taking part in industrial action. A change in the law will have significant implications for employers as it will reduce the options available to seek to discourage industrial action, such as withdrawing discretionary benefits, reducing overtime, or paying special bonuses to employees who continue to work during strike etc.

Employers should avoid treating those workers that participate in industrial action less favourably to avoid the risk of legal challenge in light of the Supreme Court’s decision.

Please contact the employment team here for more information.