19/04/2024

The Supreme Court has ruled, in Mercer v Alternative Futures Group Limited, that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) does not protect workers who take part in lawful strike action from detriment short of dismissal. The Court therefore found that Section 146 TULRCA is incompatible with the right to freedom of association and assembly under Article 11 of the European Convention on Human Rights ("the Convention").  

Employees have long had express statutory protection against dismissal for taking part in lawful industrial action, but do not have an equivalent express statutory protection against detrimental treatment or action short of dismissal for doing so. This case sought to challenge that and get the law changed – going all the way to the Supreme Court in the process. We consider this case in further detail below.  

The facts 

Ms Mercer was employed as a support worker by a charity, Alternative Futures Group Limited ("AFG"). As a workplace representative of the trade union UNISON, Ms Mercer helped to organise and took part in a series of lawful strikes during working hours in a dispute over pay. She was subsequently issued with a written warning and suspended by AFG (the effect, if not the purpose, being that Ms Mercer was removed from the workplace while the industrial action was in progress).  While suspended, Ms Mercer received basic pay, but could not earn pay for the overtime she would otherwise have worked. 

Case history 

Ms Mercer brought an employment tribunal (ET) claim against AFG under section 146 TULRCA, which protects workers from detriment for taking part in the activities of an independent trade union at an appropriate time but does not expressly provide protection from detriment for participating in lawful strike action. Ms Mercer asserted that the phrase ‘activities of an independent trade union’ in section 146 included both the planning of the industrial action and her own participation in it. She therefore argued that AFG’s decision to suspend her was taken for the sole or main purpose of preventing or deterring her from ‘taking part in the activities of an independent trade union at an appropriate time’, or of penalising her for doing so. In its defence, AFG argued that Ms Mercer’s suspension was because she had abandoned her shift without permission and had also spoken to the press without permission.  In addition, AFG contended that Ms Mercer’s assertion that section 146 protected workers from detriment for planning or participating in strike action was wrong as a matter of law. 

At a preliminary hearing, the ET ruled that Ms Mercer could not bring a claim under section 146. The ET recognised that the absence of any protection for detriment short of dismissal did breach Ms Mercer’s Article 11 right to freedom of association but ruled that section 146 could not be interpreted compatibly with that right. However, the Employment Appeal Tribunal (EAT) allowed Ms Mercer's appeal, saying that it was possible to construe section 146 compatibly with Article 11 by reading in additional wording (using the interpretative power under Section 3 of the Human Rights Act 1998 (HRA)). The EAT also granted permission to the Secretary of State for Business and Trade to intervene in the proceedings.  

When the case progressed to the Court of Appeal, the Court concluded that section 146 could not be interpreted compatibly with Article 11 of the Convention, but refused to make a declaration of incompatibility (i.e. a declaration under section 4 of the HRA that a specific provision of UK law is incompatible with a Convention right).  

UNISON then took the case to the Supreme Court on behalf of Ms Mercer. 

Supreme Court judgment 

The Supreme Court allowed Ms Mercer’s appeal, finding that the absence of any protection for a worker faced with a disciplinary sanction short of dismissal for taking part in a lawful strike in effect nullified their right to strike (as, by striking, employees are exposing themselves to detrimental treatment).  

The Supreme Court declined to read words into section 146 under section 3 HRA to make it compatible with Convention rights, as it felt that identifying the appropriate wording would involve making policy choices that may have far-reaching practical ramifications and were therefore best left to Parliament to determine. 

The Supreme Court therefore made a declaration under section 4 of the HRA that section 146 TULRCA is incompatible with Article 11 (insofar as it fails to provide any protection against sanctions short of dismissal which are intended to deter or penalise trade union members from taking part in lawful strike action). 

Impact of this decision 

The Government will now need to choose whether to legislate in this area and, if so, how. It is worth noting that under the HRA a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the current provision and nor is it binding on the parties to the proceedings: the HRA simply provides that, once a provision of legislation has been declared incompatible, the relevant Minister may order such amendments to be made to the legislation as they consider necessary.  

UNISON is, as expected, urging the Government to now act quickly to change the law. It remains to be seen whether they will do so, given that they have suggested (in the context of their proposal to remove migrants who arrive in the UK unlawfully to Rwanda) that they might seek to take the UK out of the Convention altogether or otherwise water down the HRA in the future. By contrast, the Labour Party intends to make reforms to strengthen union and worker rights should they win the next election, so they may be more receptive to taking action in this respect.  

If the law is changed to provide protection from detriment for striking workers, this will have significant implications for employers. It could reduce the options available to employers seeking to discourage industrial action. For example, some employers withdraw certain discretionary benefits, reduce hours, or stop offering overtime for employees taking part in industrial action. This may no longer be possible, although deducting an amount of pay from an employee that is commensurate to the period for which they were taking industrial action is likely still to be permissible. 

We will of course keep Make UK subscribers updated regarding any legislative developments that follow in due course. 

How we can help 

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on managing trade union and industrial action issues, including strikes. Make UK has a long track record of assisting companies with trade union matters and our HR consultants and legal advisers have extensive experience in this field (please email us for further information). 

If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].