The UK Employment Appeal Tribunal (EAT) handed down its judgment in Mrs F Mercer v. Alternative Future Group Ltd. and Others on 2 June 2021. The EAT found that the relevant provisions in UK legislation protecting workers against detriment related to taking part in independent trade union activities ought to be construed as if such activity includes participation in industrial action.
Mrs F Mercer, a support worker employed by Alternative Future Group (AFG), a health and social care charity, was suspended in March 2019 (this suspension was later lifted) for planning and taking part in strike action. At that time, Mercer was a workplace representative for her trade union, Unison. Unison called for a series of strikes that took place in March 2019 associated with a dispute involving AFG’s plans to cut payments for sleep-in shifts. Mercer was involved in planning and organising those strikes. In addition to her suspension, Mercer was also given a written warning for leaving her shift (again, this sanction was overturned on appeal).
Mercer consequently brought an Employment Tribunal claim that she had been subjected to a detriment by being suspended, she alleged, because of her involvement in the strikes, contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Section 146 of TULRCA protects workers against detriment related to, amongst other things, taking part in the activities of an independent trade union. Historically, however, the meaning of trade union activities has been interpreted as not including industrial action. This is due to the effect of Section 152 of TULRCA.
Section 152 of TULRCA protects workers against dismissal (rather than detriment) on the grounds of participating in the activities of an independent trade union. Read alongside Part V of TULRCA, which deals specifically with dismissal for participating in industrial action, this has meant that tribunals have previously found that the trade union activities covered in Section 152 of TULRCA do not extend to strike action. Given that the same phrase (i.e., activities of an independent trade union) is used in Section 146 of TULRCA, this section has been interpreted in the same manner.
The issue in this case was whether this interpretation is compatible with the obligation under Section 3 of the Human Rights Act 1998 (HRA), namely to construe (so far as it is possible) domestic legislation in accordance with the rights under the European Convention on Human Rights (ECHR). The specific convention right relevant in this case is Article 11 of ECHR, which provides a qualified right to freedom of association and assembly. This includes the right to participate in trade union activity.
The EAT found, in agreement with the Employment Tribunal, that the failure of Section 146 of TULRCA to encompass industrial action represented a violation of Article 11 of ECHR. The key point in this regard is that any restriction on the right to strike, however minor, may be found to amount to an infringement of Article 11 of ECHR.
Despite this finding, the Employment Tribunal found that it was not possible to interpret Section 146 of TULRCA in a manner compatible with Article 11 of ECHR. The EAT disagreed. The EAT highlighted the “unusual and far-reaching character” of the interpretative obligation under Section 3 of HRA and that the only limit on this duty was that the proposed change must go with the “grain” or the “underlying thrust” of the legislation (i.e., TULRCA). The EAT held that there was nothing to suggest that the “grain” of the legislation is to exclude protection against detriment for those participating in industrial action.
The EAT stated that there was nothing in TULRCA, or indeed in its legislative history or any connected parliamentary debate, that would suggest that one of TULRCA’s cardinal features was to deny workers protection against detriment by reason of participating in industrial action. Indeed, the EAT highlighted that those taking part in official strikes are already protected against unfair dismissal by Section 238 of TULRCA but have no equivalent protection for action short of dismissal.
The EAT’s decision means that Section 146 of TULRCA will now be read as encompassing participation in industrial action.
Employers should already be aware of the protection afforded to staff against dismissals due to involvement in strike action or other workplace disputes. Going forward, however, employers should also be cautious when taking action falling short of dismissal in response to a staff member preparing for and participating in industrial action.
The key point for employers to keep in mind is that in theory, any sanction, however minor, can have the effect of restricting the right to participate in trade union activities, including industrial action. Even minor reprimands for participating in a protest, for example, have been previously held to have infringed Article 11 rights.
Of course, salary deductions for days of strike shall not constitute a detriment under Section 146 of TULRCA. “No work, no pay” is a fundamental principle in UK labour law and remains compatible with the right to strike. Any salary deductions higher than the amount corresponding to the period of the strike, however, may constitute a detriment in this context.
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