In the landmark ruling of Secretary of State for Business and Trade v. Mercer, the UK Supreme Court issued a declaration of incompatibility between section 146 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) and Article 11 of the European Convention on Human Rights (ECHR). It held that it is not possible to interpret section 146 of the TULRCA in a way that is compatible with section 3 of the Human Rights Act 1998 (HRA) without making policy choices which would amount to prohibited judicial legislation. It is now up to Parliament to review and potentially revise trade union legislation to align with Article 11.
Relevant law
Section 146 of the TULRCA safeguards workers from detrimental treatment for taking part in trade union activities “at an appropriate time”, defined as excluding working time unless the employer consents. The term “an appropriate time” creates a clear separation between trade union activities conducted outside work hours and industrial action, which typically occurs during work hours. This has allowed employers to legally discipline (but not terminate) employees who strike while they are supposed to be working.
Article 11 of the ECHR guarantees everyone the right to peacefully gather and associate with others, including the right to form and join trade unions to defend their interests. This right can only be restricted to the extent necessary in a democratic society.
Section 3 of the HRA requires that, in so far as possible, domestic legislation must be read and given effect in a way that is compatible with the ECHR.
Background
Ms Mercer worked as a support worker for a social care charity and served as a workplace representative for Unison. She was involved in planning, and took part in, lawful strike action. As a result, she was suspended. During this time, she received her normal pay but was unable to earn additional income through overtime.
In response, Ms Mercer brought a claim under section 146 of the TULRCA on the grounds that her suspension had the purpose of preventing or deterring her from taking part in union activities and penalising her for doing so. The employment tribunal determined that Ms Mercer could not bring such a claim as striking was not protected under section 146 of the TULRCA. The question was therefore whether section 146 of the TULRCA could be interpreted in a way that was compatible with Article 11 of the ECHR by applying section 3 of the HRA. The judge determined that this was not possible, as including participation in lawful strike action went against the grain of the TULRCA which drew a distinction between trade union activities and industrial action. Ms Mercer appealed.
The case went all the way to the Supreme Court which also rejected Ms Mercer’s argument that it was possible to “read into” section 146 of the TULRCA protection against a detriment for participating in industrial action. However, the Supreme Court did make a declaration that the lack of protection afforded by section 146 of the TULRCA against sanctions short of dismissal for union members engaging in lawful industrial action was incompatible with Article 11 of the ECHR.
Comments
The Supreme Court’s declaration of incompatibility does not alter the current legal position. It is an indication that legislation is required to make the law compatible with the ECHR but, in the meantime, the law remains unchanged. As such, employers are not barred from imposing detriments, other than dismissal, on workers participating in lawful industrial action. Nevertheless, we recommend that employers remain cautious and take advice before doing something that may be considered a detriment where employees are involved in industrial action. Businesses should also be aware of the possible reputational consequences of acting in a manner now acknowledged to breach workers’ human rights.
Given the forthcoming General Election, it is unlikely that any new legislation will be passed quickly. However, employers should continue to monitor any legislative actions that Parliament or a future government might take in this area.
