The Supreme Court is to decide whether it is lawful for an employer to sanction an employee for taking part in industrial action without breaching their human rights.
The UK’s highest court will hear an appeal brought by a care worker who claimed she suffered a detriment when she was suspended from her duties after arranging industrial action, and lost out on pay for the overtime she would have usually worked during the suspension period.
Fiona Mercer, a representative for the Unison union, originally brought a claim in 2019 against the Alternative Futures Group, a charity in northwest England. She had been involved in a dispute over the organisation’s plans to cut payments to care staff working sleep-in shifts and organised a strike, but was suspended with normal pay and prevented from attending work or contacting her colleagues.
She brought an employment tribunal claim under the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA), particularly section 146 which protects workers who participate in industrial action from suffering detriment, but the employment tribunal ruled that these protections do not extend to actions including preparing for or taking part in strike action.
The Employment Appeal Tribunal later upheld her appeal against the decision, ruling that the TULRCA was incompatible with Article 11 of the European Convention on Human Rights (ECHR), and therefore the UK’s Human Rights Act 1998. These laws protect the right to freedom of peaceful assembly, including the right to form and join trade unions.
Trade union detriment
However, the Secretary of State for Business, Energy and Industrial Strategy (now the Secretary of State for Business and Trade) intervened at this point and brought a case to the Court of Appeal, which last year overturned the EAT’s ruling.
Mercer and Unison are now appealing against the Court of Appeal’s decision, and the case – Secretary of State for Business and Trade v Mercer – is being heard by the Supreme Court on 12-13 December.
It will decide whether the ECHR protects workers in such circumstances and whether the absence of sufficient protections under TULRCA is justified under the ECHR, particularly Article 11.
It will also look at whether it is possible to interpret TULRCA as compatible with Article 11, or whether the court will need to make a declaration of incompatibility.
Unison general secretary Christina McAnea said: “It’s time for this glaring legal loophole to be fixed. Employees in the UK already face some of the most restrictive union laws in Europe, with the government increasingly trying to limit their rights at every turn.
“Anyone with a legitimate dispute should be able to exercise their rights without worrying they’ll be treated unfairly. The Supreme Court can bring the UK back in line with international law and offer much-needed protection to UK workers.”