UK legislation which was found to offer no protection from detriment to workers who take part in industrial action is incompatible with international human rights law, the Supreme Court has ruled.
The judgment handed down by the Supreme Court in Secretary of State for Business and Trade v Mercer means that employers will not be able to discipline staff who take part in lawful strike action, with the judge overturning previous rulings that left a question mark over the compatibility of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) with the European Convention on Human Rights (ECHR).
The case was originally brought by Fiona Mercer, a representative for the Unison union, against the Alternative Futures Group, a charity in northwest England. She had been suspended after helping to organise a strike in a dispute over the organisation’s plans to cut payments to care staff working sleep-in shifts.
Trade union detriment
Trade union detriment: action short of dismissal is legal, finds Court of Appeal
She brought an employment tribunal claim under 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 preparing for or taking part in strike action.
Her appeal against the tribunal’s decision was upheld by the Employment Appeal Tribunal, which suggested that section 146 of TULRCA was incompatible with Article 11 of the ECHR protects the right to freedom of peaceful assembly including trade union activity.
The Court of Appeal overturned the EAT’s ruling in a case brought by the Department for Business and Trade, after the then business secretary Kwasi Kwarteng intervened in the proceedings. This ruling confirmed that TULRCA did not protect employees from action short of dismissal if they take part in strike action, and could not be interpreted compatibly with ECHR, but refused to make a declaration of incompatibility.
Mercer and Unison took an appeal to the Supreme Court, which handed down its judgment today. It found that the lack of protections under TULRCA for a worker facing sanctions for taking part in a strike encourages and legitimises unfair and unreasonable conduct by employers, which places the UK in breach of its obligations under Article 11 of the ECHR.
Lady Simler’s judgment makes a declaration that section 146 of TULCRA is incompatible with Article 11 of the ECHR.
The judgment says: “If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves. Nor is it clear what legitimate aim a complete absence of such protection serves. In the context of the scheme of protection that is available, it is hard to see what pressing social need is served by a general rule that has the effect of excluding protection from sanctions short of dismissal for taking lawful strike action.”
Revisit the legislation
Parliament will have to revisit TULCRA, said employment lawyer Amanda Lennon from Spencer West. “This is a significant judgment for the rights of striking workers in the UK and interestingly, as early as 2022 the Court of Appeal ruled that the legislation may well be compatible with the ECHR but nonetheless dismissed [Mercer’s] case,” she said.
Ordinarily, this would now be a matter for Parliament to remedy via legislation. However, this is highly unlikely to happen in a general election year.” – Chris Syder, Penningtons Manches Cooper
“The Supreme Court ruling therefore puts pressure on the government to revisit the legislation and make changes, despite being able to successfully intervene previously. It is also a significant win against the government’s recent moves to limit the rights of striking workers particularly in public and frontline services.”
Chris Syder, employment law partner at Pennington Manches Cooper, said: “This decision will have a significant bearing on industrial relations in the UK for years to come. It amends law dating back to the early 1980’s. The ability for an employer to subject their staff to a ‘detriment’ – such as the loss of earning overtime or being disciplined – for the purpose of preventing or deterring their participation in a union-organised industrial action has been curtailed.
“Ordinarily, this would now be a matter for Parliament to remedy via legislation. However, this is highly unlikely to happen in a general election year. That said, a Labour victory will surely see the law swiftly amended to fix its incompatibility with the UK’s international obligations and address the Supreme Court’s decision. In the meantime, the ability of employers to disincentivise participation in industrial action has been curtailed.”
Victory for striking workers
Unison general secretary Christina McAnea said: “This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done.
“No one strikes on a whim. There are many legal hoops to be jumped through first. But when a worker decides to walk out, they should be able to do so, safe in the knowledge they won’t be victimised by a spiteful boss.
“The government must now close this loophole promptly. It won’t cost any money and isn’t difficult to do.”
TUC general secretary Paul Nowak said: “Judges have been clear as day. UK law fails to protect workers from bad bosses who punish staff for exercising their right to strike. It breaches international law.
“This government is racking up embarrassing legal defeats over its attacks on the right to strike, after the High Court recently ruled its strike-breaking agency worker regulations were illegal.”
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The original claimant in the case, Fiona Mercer, said: “I’m delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff.”
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