23/04/2024

TRADE UNION WINS DETRIMENT CASE: SUPREME COURT JUDGMENT

In Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) Case ID: 2022/0080, the Supreme Court held that section 146 of the GB Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) [‘Detriment on grounds related to union membership or activities’] is incompatible with Article 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR).

The case centered around the interpretation of TULRCA and whether it could be interpreted to protect employees against detrimental action short of dismissal for taking part in industrial action during working hours. The SC found that TULRCA does not protect workers who take part in lawful strike action from detriment short of dismissal and therefore is incompatible with Article 11 of ECHR.

FACTS

Ms Fiona Mercer (M) was employed as a support worker in the care sector, and was also a workplace representative for UNISON Union. M was suspended from work on basic pay (resulting in a loss of overtime pay) and given a written warning after she was involved in planning and taking part in lawful strike action.

M brought a claim under s.146 TULRCA alleging the suspension was a detriment solely or mainly for the purpose of preventing and/or deterring her from taking part in trade union activities “at an appropriate time” or penalising her for having done so. An “appropriate time” is defined as a time outside of a worker’s working hours, or a time within working hours during which it is permissible for the worker to take part in trade union activities with an employer’s consent or by agreed arrangement.

LOWER COURTS

At first instance, the Employment Tribunal (ET) held that M could not bring a claim under s.146, but went on to consider whether the provision could be interpreted as compatible with Article 11 (right of freedom of association and assembly) of the ECHR. The ET held that TULRCA did not protect against detriment short of dismissal and could not be read in a way to give effect to that protection, meaning that M’s claim failed.

M appealed to the Employment Appeal Tribunal (EAT). The EAT allowed M’s appeal and held that TULRCA could be interpreted as compatible with Article 11.

The Secretary of State for Business and Trade then intervened in the proceedings and successfully appealed the EAT’s decision to the Court of Appeal (CA). The CA held that s.146 TULRCA could not be interpreted compatibly with Article 11 of the ECHR but declined to make a declaration of incompatibility; the CA stated the current law did not protect against action short of dismissal for taking part in or organising industrial action.

M appealed the CA’s decision to the Supreme Court.

SUPREME COURT

The Supreme Court (SC) agreed with the CA that TULCRA did not protect against detriment short of dismissal, because s.146 only covered industrial action outside of working hours.

This lack of protection in essence nullified the right to strike as enshrined in Article 11 and encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of ECHR. The SC declined to read words into section 146 to make it compatible with ECHR finding that to do so would involve making policy choices that were for Parliament to determine.

However, the Supreme Court exercised its discretion and made a formal declaration that s.146 TULRCA is incompatible with Article 11 as it fails to protect workers from being subjected to any detriment short of dismissal for taking part in lawful strike action. The Supreme Court did note that the right to strike is not an absolute right and that it was now for Parliament to decide whether to enact laws to strike a fair balance between workers’ right to strike and the interests of employers.

CONCLUSION

This is an important win for Unions, and it is now for Parliament to decide if and how enact laws to give effect to the Judgment.  It is important to note that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the current law. The upshot of the declaration is that if the relevant Minister may order such amendments to be made to the legislation as they consider necessary.

Although workers remain unprotected under the current legislation, employers should be circumspect in subjecting workers to a detriment for taking part in industrial action to avoid being accused of acting in a manner now acknowledged as a breach of workers’ human rights.  As employment law is devolved in Northern Ireland even if in Great Britain they decided not to enact any changes we would predict that our Economy Minister  (who is responsible for employment law) would extend the protection to give effect to the Judgment. This could be part of the expected upcoming Employment Bill.