Nicholas Le Riche

Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it is automatically unfair to dismiss employees for taking part in protected industrial action or trade union activities. Section 146 of TULRCA also prohibits employers from subjecting employees to a detriment short of dismissal to deter them from taking part in ‘trade union activities’.  Case law has established that ‘trade union activities’ do not include industrial action. This means that there is a gap in TULRCA, which allows employers to impose detriments on workers to deter or penalise them from taking part in industrial action.  In Secretary of State for Business and Trade v Mercer, the Supreme Court ruled that this absence of protection from detriment is incompatible with Article 11 of the European Convention on Human Rights (ECHR) which guarantees the right to form and join trade unions.

Ms Mercer was a support worker for Alternative Futures Group (AFG) and a Unison representative. After being involved in planning, organising, and participating in a series of strikes called by Unison, she was subjected to disciplinary proceedings and suspended for two weeks, meaning that she could not earn overtime pay. She brought a claim alleging that she had been subjected to these detriments for participating in ‘trade union activities’, which were prohibited under Section 146 of TULRCA. AFG argued that the suspension and disciplinary action were unconnected to trade union activities, and in any event, taking part in industrial action was excluded from the statutory protection for detriment.

The Employment Tribunal held that ‘trade union activities’ exclude participating in strikes and that employers could therefore subject workers to a detriment short of dismissal for taking part in industrial action. While acknowledging that this was a breach of the right to freedom of association under the ECHR, the Tribunal also held that it did not have the power to interpret or rewrite Section 146 of TULRCA in a way that was compatible with the ECHR.  Although the EAT subsequently allowed Mrs Mercer’s appeal, the Court of Appeal then restored the Employment Tribunal’s decision. 

The Supreme Court has now confirmed that taking part in industrial action is not an activity protected by the detriment provisions of TULRCA. This means that TULRCA encourages and legitimises unfair and unreasonable conduct by employers, effectively nullifying the right to take lawful strike action under Article 11 of the ECHR. There is also no protection elsewhere in domestic law. The Supreme Court confirmed that this could not be remedied by the courts, but took the unusual step of making a declaration of incompatibility to draw the attention of Parliament to the lack of legal redress where employers impose sanctions short of dismissal for participating in strike action. 

The Supreme Court’s judgment does not change the legislation, which remains in force until it is changed by Parliament.