Human rights protections inhibit employer sanctions over lawful strike action, rules Supreme Court

The court held that protections for workers against detriment for taking part in trade union activities, that are contained in UK legislation, do not extend to their participation in lawful strike action – but that that legislation runs contrary to Article 11 of the European Convention on Human Rights (ECHR).

The Supreme Court’s ruling (44-page / 367KB PDF) overturns a 2022 judgment of the Court of Appeal in England and Wales which had found against Fiona Mercer, a support worker, in a case she had brought against health and social care charity Alternative Future Group.

Mercer was a representative for trade union UNISON. In 2019, Mercer was involved in organising and participating in a series of strikes over pay and was interviewed by the press about the industrial action. Mercer was suspended, and in a complaint to the employment tribunal alleged the decision had been taken for the sole or main purpose of preventing or deterring her from taking part in trade union activities, or penalising her for having done so.

Over various stages of the case, the employment tribunal, the employment appeal tribunal, the Court of Appeal and now the UK Supreme Court have all had to consider whether and if so in what way section 146 of the 1992 Trade Union and Labour Relations (Consolidation) Act (TULCRA) and Article 11 of the ECHR apply to the circumstances of the case.

TULCRA protects workers against detriment for taking part in trade union activities at ‘an appropriate time’ – outside working hours, or within working hours with the employer’s consent. Taking part in industrial action is therefore not included since the withdrawal of labour, in order to be effective, is during working hours and without the employer’s consent.

Article 11 of the ECHR provides protections relating to the freedom of assembly and association, including strike action.

Prior to the Supreme Court’s ruling, it was already established that the TULCRA protections apply to employees in respect of unfair dismissal over their participation in industrial action. The Supreme Court’s judgment effectively means new legislation is needed to extend those protections to all workers and to cases where sanctions imposed by employers fall short of dismissal.

Emma Noble of Pinsent Masons, who specialises in trade union and employee relations issues, said: “The Supreme Court’s decision is not entirely unsurprising, although it will come as a disappointment to many employers who have either issued, or were considering issuing, some sort of sanction short of dismissal in the face of increasing industrial relations pressures.”

“The decision highlights that the approach to industrial relations in the UK and in particular, the complexity of what will be labelled by trade unions as ‘anti-strike’ legislation in the UK is broken. The Supreme Court ultimately found that the absence of protection in TULRCA for workers taking part in lawful industrial action against detriments short of dismissal, and that the gap in section 146 TULRCA to provide such protection is incompatible with the Article 11 of the ECHR right to freedom of association. The court could not interpret section 146 in such a way as to make it compatible,” she said.

“Notwithstanding today’s decision, section 146 and the current legislative framework under TULRCA remain ‘good law’. As noted in the judgment, there is no pending or anticipated legislation in this particular area, and legislative change is what is needed. That said, employers will not want to be seen as acting in a way which is not compatible with the ECHR. Employers should continue to exercise caution when considering whether to impose a detriment short of dismissal in the context of workers participating in lawful industrial action. Not only can it create a wealth of industrial relations issues – which will only be exacerbated given today’s judgment –there is a risk that imposing such sanctions could breach the Blacklisting Regulations, the interpretation of which was not part of the Mercer case,” Noble said.

“The Blacklisting Regulations prohibit employers from compiling lists of trade union members with a view to subjecting them to detriment. There was always therefore a risk that employers could issue a sanction which would be compliant with section 146 and the Mercer decision, which is now questionable, whilst at the same time being prohibited under the Blacklisting Regulations,” Noble said.

“Our advice is to always encourage employers and unions alike to try and resolve their industrial disputes whether between themselves or via a third party, such as Acas, without recourse to action. We need a different solution to the current framework. Whether it’s action short of dismissal by employers, or strikes by unions, businesses are losing money and workers are not being paid. This has created an unhappy and negative industrial landscape. Legislative intervention, as determined by the Supreme Court, is needed in this area,” she said.

David Thorneloe, public law expert at Pinsent Masons, said: “The declaration made under the Human Rights Act by the Supreme Court in this case does not impose a binding requirement on the government to change the law. It does initiate a process of increased scrutiny and pressure in parliament and the Council of Europe. Experience of previous declarations under the Human Rights Act suggests that new legislation will follow to remedy the problem, but not in the limited parliamentary time available before an autumn General Election. So it is more likely that the next government will pick up this issue in 2025.”