In brief

The Supreme Court has ruled that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) which does not prevent employers from taking action short of dismissal in response to striking employees is incompatible with Article 11 of the European Convention of Human Rights (ECHR).

Although the declaration of incompatibility does not affect the validity or operation of section 146, it will put pressure on the government to legislate to correct the position, and employers are likely to be mindful of the decision when considering action short of dismissal in response to industrial action. Detriments for participation in industrial action, such as removing discretionary benefits from those who take part, currently remain lawful, so long as the detriments in question aren’t so severe as to constitute a constructive dismissal.

Key takeaways

• Mrs. Mercer was a workplace representative for Unison. In early 2019, she was suspended and, ultimately, given a written warning for abandoning her shift to take part in strikes she had helped organise. Her claim under section 146 TULRCA was successful in the Employment Appeal Tribunal (EAT). The EAT held that the lack of protection from detriment for participating in industrial action under TULRCA was a breach of Article 11 of the European Convention of Human Rights (ECHR) which provides a qualified right to freedom of association and assembly that includes the right to participate in trade union activity. It decided to read down section 146 to make it compatible.
• The EAT’s decision was overturned by the Court of Appeal, which considered that viewing the entire scheme of protections under TULRCA, it was clear that the protection from detriment under section 146 was not intended to capture industrial action.
• The Supreme Court agreed that as drafted, section 146 does not provide protection against detriment short of dismissal for taking part in or organising industrial action. The court considered that the failure to provide such protection is a breach of article 11 ECHR.
• The court considered that it was unable to interpret section 146 so as to make it compatible with article 11 ECHR but considered that it was appropriate to make a declaration of incompatibility in this case.
• The declaration of incompatibility does not affect the validity or operation of section 146 so has no immediate impact for employers which means that detriments for participation in industrial action, such as removing discretionary benefits from those who take part, currently remain lawful, so long as the detriments in question aren’t so severe as to constitute a constructive dismissal.
• Nevertheless, the court’s decision will put pressure on the government to legislate to provide specific protection for workers who participate in industrial action in due course. This is more likely in the event that a Labour government is elected later this year.

For further information on the background to this case, please click here.

Mercer v. Alternative Future Group, Court of Appeal

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