In the long running case of Secretary of State for Business and Trade v Mercer, the Supreme Court has decided that S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), which protects workers from detriment for taking part in trade union activities, does not provide protection from detriment for participating in lawful strike action. However, the Court held that this lack of protection is incompatible with the right to strike under Article 11 of the European Convention on Human Rights (ECHR), in so far as it fails to provide any protection against sanctions short of dismissal intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union. The Court went on to make a "declaration of incompatibility", meaning it is now up to the government to decide whether to legislate to remove this incompatibility and how.
Background and facts
UK legislation protects workers from suffering detriment for carrying out trade union activities. UK legislation also protects employees from being dismissed for participating in industrial action in certain circumstances. However, UK legislation had, before the EAT judgement in this case, been interpreted as not protecting workers against suffering detriment falling short of dismissal for participating in industrial action.
Mrs Mercer, a workplace representative for Unison, was employed as a support worker in the care sector. In early 2019, there was a trade dispute about payments for sleep in shifts and Unison called a series of strikes. Mrs Mercer was involved in organising the strikes, and she took part in some media interviews. She was suspended for leaving her shift and speaking to the media without authorisation. The suspension was lifted, and a written warning for leaving her shift was imposed. The warning was overturned on appeal.
Mrs Mercer claimed in the employment tribunal that her two week suspension was a detriment designed to prevent or deter her from participating in trade union activities, or to penalise her for doing so. Her case was that the legislation protected her from detriment in relation to the planning and organisation of industrial action and her own participation in it. Her employer, the respondent, resisted the claims on the basis that the suspension and disciplinary action were unrelated to any trade union activities. It also argued that that the legislation did not protect her from suffering a detriment for having taken part in industrial action.
The employment tribunal rejected Mrs Mercer’s claim, interpreting the legislation as not extending to any form of industrial action. The tribunal acknowledged that the UK legislation did not, in this regard, comply with European legislation, but it considered that UK legislation could not be interpreted in such a way that would make it compliant with European legislation.
Mrs Mercer appealed and the EAT upheld the appeal, holding that taking disciplinary action against workers simply for exercising the right to strike would fundamentally contradict the right to freedom of association enshrined in the Human Rights Act. Disagreeing with the employment tribunal, the EAT did not consider that there was any reason why the UK legislation could not be interpreted so that it was compatible with European legislation.
The respondent did not appeal the EAT’s decision, but the Secretary of State was given permission to intervene and appealed to the Court of Appeal. The Court of Appeal allowed the appeal and restored the employment judge’s decision but refused to make a declaration of incompatibility because the incompatibility arose from a gap in domestic law, rather than from a specific provision of UK legislation. Mrs Mercer then appealed to the Supreme Court.
The Supreme Court decision
The Supreme Court held:
- S.146 TULCRA only covered activities which are outside working hours. Industrial action will usually be carried out in working hours if it is to have the desired effect. As such S. 146 did not provide protection for detriment short of dismissal for taking part in or organising industrial action;
- this lack of protection placed the UK in breach of its obligations under Article 11 of ECHR; and
- it wasn’t possible to interpret s146 in a way which was compatible with Article 11.
The Supreme Court disagreed with the Court of Appeal and stated that the court had a discretion to make a declaration of incompatibility, which it then did.
What does this mean for employers?
A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the relevant provision. So unless and until the government brings forward legislation to amend s.146, UK employees in the private sector are not protected from detrimental treatment (short of dismissal) for organising or participating in industrial action.
At the time of writing the government has not stated how it will respond to the Supreme Court's decision and it may be some time before it does so as it digests the decision. So, at this stage there are open questions on when the law will be changed, how it will be changed and whether any changes have retrospective effect (which is possible but would be unusual).
The position for employees in the public sector is slightly different as the Human Rights Act gives employees specific, legally enforceable rights against public authorities and public authorities a duty to act consistently with the Supreme Court's declaration. So an employee could bring a claim against a public authority in the civil courts for breach of the Human Rights Act and public authorities should apply the Supreme Court's decision as if it represents UK law as it applies to them.
It is worth noting that the Supreme Court emphasised the protection covered by Article 11 ECHR applies to those taking part in lawful industrial action organised by a trade union, so it does not extend to those taking part in unlawful, unballoted action or where the union's balloting/notification process is flawed.
So, whilst the Supreme Court's decision represents the end of the Mercer case, it is not the end of the story on what protections employees have while organising or taking part in lawful industrial action. Depending on the next General Election result, different governments may have different viewpoints on how to address this.
