Supreme Court rules lack of protection for striking workers breaches human rights law

The Supreme Court has ruled that the UK’s legislation allowing employers to take disciplinary action against employees for their participation in lawful strike action is in breach of those employees’ human rights. It means Parliament will now need to consider whether to amend trade union law to ensure compliance with Article 11 of the European Convention on Human Rights (ECHR). We’ll speak to an employment lawyer about why employers should tread carefully notwithstanding that law has not yet changed.

This is the case of Secretary of State for Business and Trade v Mercer, a ruling that overturns the judgment of the Court of Appeal two years’ ago which had found against Fiona Mercer, a support worker, in a case she had brought against health and social care charity Alternative Future Group. The case has been widely reported across the HR press and the national press, including the FT which describes it as a ‘landmark’ ruling.

The facts briefly. Fiona Mercer – pictured here on UNISON’s website following the Supreme Court’s ruling – was a representative for the trade union. In 2019 she was involved in organising and participating in a series of strikes over pay and was interviewed by the press about the industrial action. She 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. The case turned on 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 European Convention on Human Rights apply to the circumstances of the case. Under section 146 workers do receive protection from detrimental treatment if the sole or main purpose is to prevent or deter them from taking part in trade union activities, or to penalise them for doing so. However, this protection only applies if those activities take place at ‘an appropriate time.’ For these purposes, ‘an appropriate time’ is defined as a time outside of the employee’s working hours, or within working hours with the employer’s consent. It would be very unusual for an employer to consent to industrial action which, by its nature, must generally take place during a worker’s working hours to be effective. Until this case, workers had not enjoyed protection from sanctions short of dismissal for taking part in industrial action, even where it was lawfully called. Meanwhile, 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.

Employment lawyer and industrial relations expert Emma Noble has written about it in a news piece for Out-Law. Commenting on the ruling, she says: “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 right to freedom of association. The court could not interpret section 146 in such a way as to make it compatible.”

The Supreme Court’s findings in this case, and their declaration of incompatibility, do not impact the general application of current law, which remains in full force and effect. So it begs the question why should employers do anything differently? Earlier Emma Noble joined me by phone from the Birmingham office and I put that question to her:

Emma Noble: “It’s a really good question because you're quite right, the underlying law hasn't changed and it remains the same for now but, of course, employers will often grapple with the really difficult question around what they can and can't do with their staff in the event that they take part in industrial action. So, section 146 of TULRCA doesn't protect striking workers from action short of dismissal so, in theory, provided that it is action that is short of dismissal employers can do as they please, almost, but nevertheless employers need to be cautious in how they're treating striking workers, or those proposing to strike for various reasons. First of all, not only are detrimental sanctions likely to have a negative impact on any industrial relations, and relations with trade unions, at what will already be obviously a very fraught and difficult time, any detrimental action also carries the risk of reputational damage and I think that this decision here from the Supreme Court brings that really into focus. The decision makes employers increasingly vulnerable to challenge, especially by trade unions who've obviously seized on this case because it does highlight, obviously, that there is a gap and it is lacking and incompatible with Article 11 rights.”

Joe Glavina: “In cases where the sanction imposed by the employer is action short of dismissal, so TULRCA is not breached, why is there a risk of reputational damage because in that case the employer wouldn’t actually have breached the law?”

Emma Noble: “Yes, so although the employer wouldn't currently, in the absence of any legislative change, face legal consequences if it's subjected striking workers to detriment you are subjecting somebody to a detriment for having done something, provided that the unions have complied with their legal requirements around balloting for the action etcetera, then you're subjecting somebody to a detriment for exercising what they will perceive their right to participate in lawful industrial action. So, it has consequences amongst the workforce, and obviously the trade unions will seize on that and their narrative will be this is an employer who doesn't support workers and their rights and this is an employer that wants to penalise somebody, essentially, for wanting to participate in industrial action and that's the narrative that they'll spin, again, amongst the workforce but externally as well.”

Joe Glavina: “In your article you say there may be circumstances where it would be permissible under Article 11 for an employer to impose a sanction of some kind, but that would be Parliament to decide, not the courts. What do you mean by that?” 

Emma Noble: “Yes, so it's important to understand that the Supreme Court's judgment here doesn’t suggest that any detriment imposed on a worker for taking part in industrial action is incompatible with Article 11. It's more nuanced than that. The relevant ECHR case law, of which there is a wealth, indicates that detriments can be permissible, provided that a fair balance is struck. The issue with the UK’s legislation that was bought out within this case is that it's completely silent on the matter and provides that no protection at all from detriment for taking part in industrial action and it's that total lack of protection for workers which the Supreme Court considered amounts to incompatibility with the ECHR. So there may be some circumstances where it would be permissible under Article 11 for an employer to impose a sanction of some sort on somebody who's participating in industrial action but Parliament has to make that decision, not the courts and, essentially, this case is just pointed out that there is that lacuna in the law.”

The other point worth highlighting here, another risk to be aware of, is that workers may also have a separate statutory remedy under the Blacklists Regulations 2010, insofar as a list of relevant trade union members is maintained by the employer. That’s a point Emma flags in her Out-Law article: ‘Human rights protections inhibit employer sanctions over lawful strike action, rules Supreme Court’. She says:

“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.” 

She goes on: “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.” 

If you would like further analysis of the Supreme Court’s ruling then look no further than that Out-Law article by the Employment Team. We have put a link to that, and to the Supreme Court’s judgment, in the transcript of this programme for you. 

LINKS
- Link to Supreme Court’s judgment: Secretary of State for Business and Trade v Mercer 
- Link to Out-Law article: ‘Human rights protections inhibit employer sanctions over lawful strike action, rules Supreme Court’