Can you be subjected to a detriment for taking part in industrial action?

Background

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA or “the Act”) protects workers from being subjected to any detriment by their employer in relation to their trade union membership or their engagement in “trade union activities”.

Crucially, however, it does not refer to “industrial action”. This is dealt with in a different part of TULRCA, which confirms that workers are protected from dismissal by reason of engaging in industrial action, but which does not prohibit disciplinary measures short of dismissal.

In Mercer v Alternative Future Group Ltd, Mrs Mercer was suspended and disciplined by her employer Alternative Future Group Ltd after helping to organise, and taking part in, several strikes. She brought claims before the employment tribunal on the grounds that she had been subjected to a detriment for engaging in trade union activities under section 146, arguing that the “activities” protected by section 146 included industrial action.

This argument relied in part upon articles 10 and 11 of the European Convention on Human Rights (ECHR). Article 10 enshrines the right to freedom of expression and article 11 provides that workers have the right to freedom of assembly and to form and join trade unions for the protection of their interests. Under section 3 of the Human Rights Act 1998 (HRA), courts and tribunals are obliged to interpret domestic legislation in a way which gives effect to the ECHR.

Mrs Mercer argued that, in light of these rights, section 146 ought to be read in such a way that “trade union activities” includes industrial action and would thereby protect her from detrimental treatment.

Employment Tribunal

The Tribunal accepted that “trade union activities” would, in ordinary parlance, be considered to include industrial action. However, it was not possible to read this into section 146, as industrial action was dealt with elsewhere in the legislation. Interpreting section 146 to include industrial action would therefore “go against the grain” of the legislation.

It was therefore not possible to construe section 146 in such a way that it extended to cover detriment suffered as a result of industrial action. Mrs Mercer appealed the decision and the case eventually progressed to the Supreme Court.

The Supreme Court

The Supreme Court agreed that the ordinary rules of construction dictate that section 146 does not cover industrial action. As such, it found that TULRCA failed to provide workers engaging in industrial action with protection from detriment short of dismissal.

The Supreme Court also concluded that article 11 does not require the UK to provide universal protection to workers against any detriment intended to dissuade them from striking. However, the UK is obliged to strike a fair balance between the interests of employers and workers.

However, the Supreme Court found that UK law does not provide any protection from detriment short of dismissal for striking workers, meaning that any worker who strikes exposes themselves to detrimental treatment. As such, section 146 essentially encourages and legitimises employers subjecting workers to detrimental treatment for lawful strike action. The Supreme Court therefore concluded that there was no fair balance between employers and workers, and that the UK is therefore in breach of article 11.

With this determined, the Supreme Court then moved to consider whether it was possible, under section 3 HRA, to interpret section 146 in such a way as to make it compatible with article 11. The Supreme Court held that any such interpretation would inevitably amount to impermissible judicial legislation, as opposed to interpretation, with potentially far-reaching ramifications.

As such, the Supreme Court exercised its discretion under section 4 HRA and declared section 146 incompatible with article 11, insofar as it fails to provide any protection against sanctions short of dismissal for industrial action.

What Now?

Trade Unions have welcomed the Supreme Court’s decision. Christina McAnea, General Secretary for Unison, commented “This is the most important industrial action case for decades… the government must now close this loophole promptly”.

The Supreme Court’s declaration of incompatibility does not mean that section 146 ceases to apply – but it may encourage the UK Government to take steps to amend the legislation. However, a spokesperson for the Department of Business and Trade was cautious about making any promises in this regard, stating “the government will consider the judgment carefully before responding”.

Context is important here. The Government has previously hinted at leaving the ECHR in order to push through its Rwanda plan, and some of the more right-wing Conservative backbenchers, including former Home Secretary Suella Braverman, are becoming increasingly vocal on this point. Whether the Supreme Court’s decision will prompt an update to the legislation or is simply used as further ammunition in arguments to leave the ECHR, remains to be seen.