Employers are able to sanction employees that take part in industrial action without breaching their human rights, the Court of Appeal has ruled.
In a judgment handed down this week – Mercer v Alternative Futures Group & Another – Lord Burnett of Maldon, Lord Chief Justice of England and Wales, confirmed that the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) does not protect employees from action short of dismissal if they take part in strike action.
The case concerned a care worker, Fiona Mercer, who was a workplace representative for the Unison trade union.
In early 2019 there was a dispute regarding payments for sleep-in shifts. Unison called a series of strikes which ran between 2 March and 14 May 2019, and went through the required balloting and notification process.
Mercer, who was involved in planning and organising the strikes, was suspended in March 2019. She was told this was because of allegations that she had abandoned her shift on two separate occasions without permission and had spoken to the press without authorisation. She received normal pay during her suspension, but did not receive pay for the overtime she would normally have worked.
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She took a claim for unlawful detriment under the TULRCA – particularly section 146 which protects workers who participate in industrial action – to the employment tribunal.
Her case was dismissed, with the tribunal deciding that case law from the late 1970s meant that trade union activities protected under TULRCA did not include preparing for or taking part in strike action.
Mercer took an appeal to the Employment Appeals Tribunal, which was upheld in June 2021. The EAT said the TULRCA was incompatible with article 11 of the European Convention on Human Rights (ECHR), and therefore the Human Rights Act 1998 – the UK’s domestic interpretation – which protects the right to freedom of peaceful assembly, including the right to form and to join trade unions.
The Secretary of State for Business, Energy and Industrial Strategy intervened in the case and took an appeal against the EAT’s decision to the Court of Appeal.
The Court of Appeal has reversed the EAT’s decision and restored the employment tribunal’s decision.
The judgment says that failure to give legislative protection against any sanction short of dismissal for official industrial action “may put the United Kingdom in breach of article 11 [of the ECHR]… if the sanction is one which strikes at the core of trade union activity”, but suggested this would depend on the facts of the case.
It noted that domestic legislation was sometimes incompatible with the ECHR, but there was no need to change it.
The judgment says: “It is far from obvious that article 11 requires protection to be given against every form of detriment, at any rate in a private sector case, in response to industrial action. For example, does it require the law of each state to provide that the employer will be acting unlawfully if the employees concerned were refused a discretionary bonus; or were not considered the next time that a vacancy occurred for an internal promotion? The Strasbourg case law cited to us does not give a clear answer to those questions.”
Essentially, the court has confirmed that UK legislation does not prevent an employer taking action short of dismissal in response to an employee’s participation in industrial action.” – Jonathan Tuck, Baker McKenzie.
Jonathan Tuck, employment and benefits partner at Baker McKenzie, said: “The Court of Appeal’s decision in this case is likely to be significant for employers, employees and trade unions who are contemplating industrial action. Essentially, the court has confirmed that UK legislation does not prevent an employer taking action short of dismissal in response to an employee’s participation in industrial action.
“In light of this case, for example, an employer might take steps to encourage workers to cross the picket line and attend work during a strike, and could potentially remove discretionary benefits for those who do participate. These actions would no longer give rise to a standalone claim under the UK legislation.
“The legal arguments for and against centred around how UK legislation creates a distinction between industrial action and the ‘activities of a trade union’. There are some protections from dismissal in both cases, but the legislation as drafted only provides protection from action short of dismissal in the case of ‘activities of a trade union’.
“The court has said that, whilst the right to freedom of assembly guaranteed by the European Convention of Human Rights could be breached in some cases, this would not always be the case and, as such, was not prepared to alter the meaning of the words in the UK legislation.”
A similar case on trade union detriment went to the EAT last year. In Ryanair DAC v Morais, Judge Auerbach found that the requirement to read the legislation compatibly with the ECHR meant that an employment tribunal had correctly concluded that a group of pilots who saw their staff travel benefits removed after striking in 2019 had been taking part in trade union activities for the purposes of the TULRCA legislation.
