The Supreme Court has held in Mercer v Alternative Future Group Ltd and anor (Secretary of State for Business, Energy and Industrial Strategy intervening) that lack of protection from detriment for having participated in strike action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) was a breach of Article 11 of the European Convention on Human Rights (right to freedom of assembly) and that such protection should therefore be read into section 146.
Mrs Mercer has been employed by Alternative Future Group Ltd since 2009. At the time of the relevant events Mrs Mercer was the Group's Acting Chief Executive and a workplace representative for the trade union, Unison. A series of strikes was arranged to take place between 2 March and 14 May 2019 and Mrs Mercer was involved in planning and organising the strikes. She also took part in some media interviews related to the strikes and indicated an intention to participate in the strikes herself. She was suspended by the Group for nearly two weeks and subsequently disciplined. She issued a claim on the basis that she had been subjected to a detriment for participating in the activities of a trade union contrary to section 146 TULR(C)A 1992.
The Group argued that the suspension and disciplinary action were unconnected to trade union activities and that taking part in industrial action was not an activity protected by section 146. The tribunal agreed but, on appeal, the Employment Appeal Tribunal (EAT) held that the relevant case law showed that the European Court of Human Rights (ECtHR) regarded any restriction on the right to participate in a trade union-sanctioned protest or strike action as an infringement of rights under Article 11. As a result, the UK's failure to provide protection against action short of dismissal for participating in strike action was an interference with Article 11 rights. The exclusion of industrial action from section 146 served no objective and the EAT concluded that the section should be read as encompassing participation in industrial action.
The Court of Appeal disagreed and restored the decision of the employment tribunal. The matter then went to the Supreme Court. The Court has made a declaration under section 4 of the Human Rights Act 1998 (HRA) that section 146 is incompatible with Article 11, insofar as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action.
Take note: Following the decision in Mercer, section 146 of TULRCA will remain in force despite the fact that it has been declared incompatible with EHCR rights. The Supreme Court's declaration serves to draw the attention of Parliament to an incompatibility that cannot be remedied by the courts. However, if the legislation is not amended, employees who are treated badly, short of dismissal, for taking part in trade union action will still be able to take the matter to the ECtHR. It follows that employers will have to tread carefully when dealing with employees who are involved in strike action going forward.
