19 April 2024
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Imposing detriments on striking workers: the Supreme Court decision

To The Point
(3 min read)

The case of Secretary of State for Business and Trade v Mercer and the Supreme Court's decision will be of interest to all unionised employers.
The appellant, Ms Mercer, was suspended by her employer after taking part in lawful industrial action, with the result, amongst other matters, that she was unable to earn overtime pay which she would normally have earned.

What was the Supreme Court looking at?

  • Section 146 Trade Union and Labour Relations (Consolidation) Act 1992 (TURLCA) prohibits employers from subjecting employees and workers to detriment short of dismissal in relation to taking part in the activities of an independent trade union.
  • Article 11 of the European Convention on Human Rights (ECHR) sets out the freedom of assembly and association and protects certain trade union freedoms.
  • The Court of Appeal confirmed that activities of an independent trade union could not be interpreted so as to apply to industrial action.
  • There is, therefore, an unusual gap in the legislation which permits employers to impose detriments on workers taking part in industrial action (as long as they don't dismiss them -where protection elsewhere in TULRCA does provide protection).
  • Ms Mercer claimed that imposing a detriment on her must breach s146 TULRCA – if it did not, then that meant s146 TULRCA was not compatible with her rights under Article 11 ECHR.
  • The Court of Appeal decided:
    • the correct reading of s146 TULCRA was that Ms Mercer could be treated to her detriment for participating in industrial action and there was nothing she could do about that.
    • although the lack of protection the case identified may amount to a breach of Article 11 ECHR it could not interpret/re-write s146 TULRCA in a way that was compatible with Article 11 ECHR.
    • having gone that far, it could not go so far as to make a declaration that s146 TULRCA is incompatible with Article 11 ECHR.

The Supreme Court has now gone one step further than the Court of Appeal and declared that s146 TULRCA is incompatible with Article 11 ECHR.  In the Supreme Court's view, to comply with Article 11 ECHR, the Government has a positive obligation to provide some protection from detriment resulting from industrial action.

What happens now?

The Supreme Court's declaration of incompatibility firmly puts the ball in the Government's court. It is now for ministers to determine whether TULRCA should be amended, or other legislation passed to address the gap in the current legislation. The decision will not be straightforward – under ECHR, the Government has scope (known as a "margin of appreciation") to set its own rules on what is permitted, provided that a fair balance is achieved and restrictions on Article 11 rights are justified. The Government must therefore decide how that balance will be struck. Any proposed changes must then be approved by Parliament. One potential (some may say likely) outcome is that the matter will remain under consideration until after the General Election which is due to take place before the end of 2024. If, as many anticipate, there is a change of Government following a General Election, it is likely the current gap in legislation which permits employers to impose detriments on workers for taking part in industrial action will be closed.

Next steps

What does the decision mean for employers?

In purely legal terms, nothing has changed for private sector employers until new legislation is passed. (Public sector employers are in a different position because they have a duty to act in a way compatible with ECHR). Although the law has not changed, trade unions have already been vocal in expressing their view that employers should no longer impose detriments on workers who take part in industrial action.

Any employers who are considering imposing detriments on workers taking part in industrial action must also beware of breaching the Blacklisting Regulations 2010, which makes it illegal for employers to compile a "prohibited list" of workers who are members of trade unions or take part in trade union activities.

To the Point 

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