In Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening), the Supreme Court (SC) upheld the Court of Appeal’s (CA) decision that employees are not protected from detriment for having participated in strike action by Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The SC also made a declaration that this lack of protection is incompatible with the article 11 - freedom of assembly and association in the European Convention on Human Rights (ECHR).

This long-running case considers whether employees engaging in strike action should be protected from potential disadvantage and prejudice by their employers.

Background

The Claimant was involved in planning and organising a series of strikes, took part in some media interviews about them, and indicated an intention to participate in the strikes herself. In March 2019, she was suspended by her employer because she had abandoned her shift on two occasions without permission and had spoken to the press without prior authorisation.

The Claimant brought a claim under section 146 of TULRCA (which protects employees from being subjected to a detriment by their employer for taking part in ‘trade union activities’). The Employment Tribunal (ET) dismissed the Claimant’s claim, but the Employment Appeal Tribunal (EAT) overturned this decision in June 2021, thus extending the scope of protection for employees taking part in or preparing for industrial action under section 146 of TULRCA (see our insight on that case here).

In April 2022, the CA found that the EAT was wrong to read protection from detriment for having participated in strike action into section 146 of TULRCA. However, the CA declined to make a declaration that section 146 was incompatible with article 11 (see our insight on that case here). The Claimant appealed to the SC.

The Supreme Court’s decision

The SC agreed with the CA that:-

• there is no express statutory (or other) protection for employees in domestic law against action short of dismissal taken against them by their employer for participation in lawful strike action; and,
• it is not possible to interpret section 146 to provide such protection as this “would amount to impermissible judicial legislation rather than [permissible judicial] interpretation” as there is not “a single obvious legislative solution” to this issue.

However, unlike the CA, the SC determined that it was appropriate to declare section 146 as incompatible with article 11 ECHR on the basis that:-

• Section 146 “excludes all protection from detriment short of dismissal for participation in lawful industrial action” and blocks “the sole means of vindicating [a claimant’s] article 11 right in the domestic courts or tribunals”. This “has the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the UK in breach of article 11”; and,
• “the failure to provide any legislative protection at all against any sanction short of dismissal for lawful industrial action against those who take it, does put the United Kingdom in breach of its positive obligation to secure effective enjoyment of the right to participate in a lawful strike that is protected by article 11 (including as regards the private sector)”.

What to take away

This decision has identified what the SC described as an “inherently objectionable” gap in industrial relations law: that section 146 fails to provide any protection against detriment and sanctions short of dismissal, and the effect of this is to deter or penalise trade union members from taking part in lawful strike action organised by their trade union. In practice, until TULRCA is amended to reflect the SC’s decision, this will mean that an employee who is subjected to a disciplinary process and given a written or final written warning due to their participation in lawful strike action, will not have a legal challenge available to them against their employer.

However, a declaration of incompatibility does not affect the validity, continuing operation, or enforcement of the legislation it concerns, and, it does not require Parliament to take any action. This means section 146 will continue to have force and effect, until the law is amended to remedy the incompatibility of the UK law.

How Capsticks can help

Unfortunately, it is not always possible to avoid industrial action. Capsticks has significant experience of supporting employers before, during and after a dispute (including delivering training, supporting decision makers and HR involved in resolution of the dispute, management of staff and services and contingency planning, as well as defending any legal challenges / claims that may arise).

Capsticks also continues to support employers and national organisations during the ongoing industrial action in the health sector.

For further information on how we might assist your organisation, please contact Nicola Green, Paul McFarlane or Andrew Rowland.