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In brief

The Court of Appeal has overturned the Employment Appeal Tribunal’s (EAT) decision which had read down section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to give workers who participate in industrial action protection from action short of dismissal. The court confirmed that the protections in TULRCA, as drafted, do not extend to preventing employers from taking such action in response to striking employees. This means that a decision to potentially remove discretionary benefits from employees participating in industrial action would no longer give rise to a standalone claim under TULRCA.

  • The Court of Appeal’s decision, in this case, is likely to be significant for employers, employees and trade unions who are contemplating industrial action. 
  • Whilst the court agreed that the distinction between protection for ‘activities of a trade union’ (which extends to dismissal and action short of dismissal) and industrial action (which only covers dismissal) could be a breach of the right to freedom of assembly guaranteed by the European Convention of Human Rights (ECHR), it decided that this would not always be the case.
  • The court considered that the extent of how much protection to give is essentially an issue of policy, which is for Parliament to decide rather than the courts. The court also declined to make a declaration of incompatibility between UK law and the ECHR, given the scope for variation on when the ECHR may be breached in these cases.
  • The decision is a welcome clarification for employers. However, from an industrial and employee relations perspective, employers should continue to think carefully before taking action in response to industrial action that may amount to a detriment. Employers should also consider how this decision impacts their broader mitigation and contingency planning in instances of industrial action.
  • For further information on the EAT’s decision and factual background, please click here.

Mercer v. Alternative Future Group, Court of Appeal.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.


Jonathan Tuck is a partner in the Baker McKenzie employment department. Jonathan joined the Firm in June 2012 and completed secondments at Google between March and July 2015 and British Airways between July 2015 and January 2016.


Richard Cook is a Senior Associate in Baker McKenzie London office.


Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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