Supreme Court: lack of protection for striking workers in UK is incompatible with their convention rights

An employee who takes part in a lawful strike is protected against being dismissed. But what happens if their employer suspends or disciplines them in an attempt to prevent or deter them from going on strike? Can they rely on s146 TULRCA 1992 (which protects employees against detriment because they are a member of a trade union or have taken part in activities linked to a trade union) to protect them? That was the issue the Supreme Court had to determine in the case of Secretary of State for Business and Trade v Mercer.

Background

Ms Mercer was a care worker and a workplace trade union rep for UNISON. She was involved in planning and organising lawful strikes against her employer following a dispute about plans to cut payments to staff for sleep-in shifts. She spoke to the media and made it clear that she would join the strikes. Her employer suspended her and gave her a warning (which it later overturned) for abandoning her shift to take part in the strikes, and because she had spoken to the press. 

She complained to an employment tribunal that the 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 penalising her for having done so, contrary to s146 TULRCA.

The tribunal rejected her claim. It found that s146 did not protect workers from detriment short of dismissal. Ms Mercer appealed and, at that stage, the Secretary of State intervened to support the tribunal's judgment. The EAT reversed the decision and the Secretary of State took over the litigation and appealed to the Court of Appeal. 

The Court of Appeal held that Ms Mercer couldn't bring a claim under s146 because of the way the legislation was worded. It went on to say that this may put the UK in breach of Article 11 of the European Convention on Human Rights, which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so, but that it couldn't re-write the law to comply with this. 

Ms Mercer, supported by the union UNISON, appealed to the Supreme Court.

Decision of Supreme Court

The Supreme Court held that the current law did not protect workers who, like Ms Mercer, are disciplined or suffer other detriments, short of dismissal, for taking part in lawful strikes. This was contrary to their convention rights and it criticised the lack of protection in robust terms:

“The right of an employer to impose any sanction it chooses, short of dismissal, for participation in lawful strike action nullifies the right to strike, as employees are unable to strike without exposing themselves to detrimental treatment. In that sense, section 146 both encourages and legitimises unfair and unreasonable conduct by employers.”

However, the Supreme Court agreed with the Court of Appeal that it was not possible to interpret s146 in a way which was compatible with UK citizens' convention rights and it made a declaration to that affect. 

Impact

Employees who are disciplined etc for taking part in strike action have limited legal redress unless they are dismissed and s146 will continue to be interpreted in line with this judgment until such times as the government changes the law. That doesn't, however, mean that you should ignore the decision. For a start it will make negotiations with the union/s much more difficult and further disputes more likely. Acting in a way that breaches your employees' convention rights could also cause you reputational damage. 

The government hasn't given an official statement about the case. Given it was the losing party we suspect that it won't be rushing to amend TULRCA in the limited parliamentary time available before the General Election.

Labour are ahead in the polls, and if they form the next government they are likely to re-examine this law, alongside other proposals outlined in their New Deal for Working People which promised to update trade union legislation to make it fit for purpose and “empower working people to collectively secure fair pay, terms and conditions”.

Until the law is changed, individual workers who are subjected to a detriment in these circumstances may be able to go to the European Court of Human Rights to enforce their convention rights. 

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