The Employment Appeal Tribunal (EAT) has held that the lack of protection from detriment for participating in industrial action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) was a breach of Article 11 of the European Convention of Human Rights (ECHR) which guarantees the right to freedom of assembly and the right of workers to form and join trade unions. The EAT held that it was possible to read such protection into section 146.
- The EAT’s decision gives employees a right to be protected from detriment for participating in industrial action, which goes against previous decisions considering the same issue.
- Employers should think carefully and take legal advice before taking action in response to industrial action that may amount to a detriment for an employee.
- The EAT did, however, confirm that withholding pay from employees taking industrial action is lawful and does not amount to a detriment.
For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.
TULRCA provides protections for employees who are participating in industrial action or other trade union activities.
Section 238A provides that an employee will be automatically unfairly dismissed if the reason for dismissal is that they took part in protected industrial action.
Section 146 provides that an employer must not subject workers to a detriment where the sole or main purpose is to deter them from taking part in the activities of an independent trade union at an appropriate time. Section 152 provides that an employee will be automatically unfairly dismissed if they are dismissed for taking or proposing to take part in the activities of an independent trade union at an appropriate time.
The legislation therefore makes a distinction between ‘industrial action’ and ‘activities of a trade union’ where protection from detriment is only provided for the latter. Previous case law has held that participating in industrial action is not protected under sections 146 and 152.
Article 11 of the ECHR provides a qualified right to freedom of association and assembly that includes the right to participate in trade union activity. Restrictions on the exercise of Article 11 rights are permitted only where they are “prescribed by law” and “are necessary in a democratic society…for the protection of the rights and freedoms of others”.
Mrs. Mercer was a workplace representative for Unison. In early 2019, Unison arranged a series of strikes to take place at her employer’s. She was involved in planning and organising the strikes, took part in some media interviews covering the strikes, and indicated an intention to participate in the strikes. She was suspended and ultimately given a written warning for abandoning her shift to take part in the strikes. She brought a claim in the employment tribunal under section 146 arguing that participating in industrial action amounted to ‘activities of a trade union’.
The tribunal held that, as a matter of ordinary language, participation in industrial action would constitute activities of a trade union. However, this is not how it had been interpreted by previous case law. The tribunal considered that Article 11 ECHR was infringed by the lack of protection for detriment from participating in industrial action. However, it considered that interpreting section 146 more broadly to encompass industrial action so as to make it compatible with Article 11 would “go against the grain” of the legislation and so it could not read section 146 down.
The EAT agreed with the tribunal that the lack of protection from detriment for participating in industrial action was a breach of Article 11 ECHR. The EAT considered however that it was possible to read down section 146 so as to make it compatible with Article 11 ECHR without going against the grain of TULRCA. It noted that “the very fact that dismissal for participation in industrial action is protected (albeit in limited circumstances) militates against any argument that it is a cardinal feature of TULRCA that protection against detriment for such participation should not be protected”. It also noted that Parliament’s express aim was that trade union law should comply with Article 11 ECHR.
The EAT decided to read down section 146 by adding a new definition of ‘an appropriate time’ in section 146(2) to include “(c) a time within working hours when he is taking part in industrial action”.
Mercer v Alternative Future Group, EAT