UK Trade Union Law not compatible with European Convention of Human Rights

Trade Union Protection 

Employees under TULRCA have protection from being dismissed for taking part in trade union activities. However, in this recent case, it was found that under Section 146, the current legislative position does not protect employees from detriments short of dismissal; for example, in this case a suspension causing a reduction in pay.  

What does Section 146 say? 

To explore the Supreme Court’s answer, we must first look at what Section 146 says. It states that a worker has the right not to be subjected to a detriment short of dismissal (i.e. a detriment that is not dismissal) by their employer, if the sole purpose of the detriment is preventing, deterring or penalising them for taking part in trade union activities.  

It should be noted that this section only protects employees where the trade union activities take place at an “appropriate time”, which, for the purposes of Section 146, is defined as outside the employee’s working hours or – if they have the employer’s consent – within working hours.  

What was the issue in this case? 

The Claimant in this case, Miss Mercer, was employed as a support worker by the Respondent, Alternative Futures Group Ltd (AFG). Miss Mercer was also a UNISON representative and, due to this, she was involved in the planning of – and participating in – a lawful strike at her workplace. AFG suspended her on basic pay (meaning that she lost her overtime pay) and gave her a written warning.  

Miss Mercer brought a claim under Section 146 TULRCA, claiming that her suspension was for the sole purpose of preventing/ deterring her from taking part in trade union activities. AFG disputed this and stated that she had abandoned her shift without permission. Due to this, essentially, she was not protected from being subject to a detriment. 

The issue here was that Section 146 has long been understood not to provide protection from detriment short of dismissal, due to the qualification that it must be “at an appropriate time” and, as such, it essentially limits the protection to outside working hours. It is highly unlikely that an employer would approve strike action during working hours, given its purpose is to cause disruption to the employer’s workforce.  

What was to be decided? 

Miss Mercer argued that under Article 11 of the European Convention of Human Rights (ECHR) (i.e. the right to strike), it was possible to interpret Section 146 to extend this protection to within working hours. The Tribunal, however, dismissed the claim on the basis that taking part in industrial action was not a protected activity for the purposes of Section 146. The Tribunal also recognised that the lack of protection from a detriment short of dismissal for strike action would be in breach of Article 11 but did not find that Section 146 could be read in a way to make it compatible with this.  

This decision was overturned by the Employment Appeal Tribunal (EAT), which found that it was possible to read Section 146 in a way that was compatible with Article 11, with the addition of the following wording to the definition of “appropriate time”:  

“(c) a time within working hours when he is taking part in industrial action”.  

The Secretary of State for Business and Trade intervened in the case and was successful in appealing the decision of the EAT in the Court of Appeal (COA). The COA agreed with the lower courts that Section 146 does not give protection to employees taking part in industrial action, essentially meaning that the legislative position of TULRCA may be in breach of Article 11. The COA held that it was not appropriate to interpret Section 146 to comply with Article 11 just by inserting additional wording.  

The case reached the Supreme Court, who had to determine the extent of the protection offered by Article 11, the scope of Section 146 and whether it could be read in a way to provide protection to employees from detriment short of dismissal and finally, if neither of those were to apply, whether a declaration of incompatibility should be made in respect of Section 146. 

What was decided?  

Miss Mercer was successful in her third ground of appeal. The Supreme Court made a declaration of incompatibility and found that Section 146 did not offer protection against detriments short of dismissal for union members taking part in industrial action, in breach of Article 11.  

Further, it found that it was not possible to interpret Section 146 in a way that would make it compatible with Article 11. This essentially meant that Miss Mercer could not bring her claim under Section 146 and that UK law was not compatible with the ECHR.  

What happens next? 

Due to this, the likelihood is that Parliament will need to create new statutory protections for workers taking part in industrial action to bring the law into line with Article 11.  

What does this mean for employers? 

Whilst the law has not yet been changed, employers will need to be careful in their actions where employees are threatening industrial action. They should avoid treating employees who are part of a union negatively where they are taking part in lawful industrial action, so as not to fall foul of a legal challenge following this case.  

It is likely that further updates on this area of law will come and therefore employers should err on the side of caution, seeking legal advice when making decisions regarding employees involved in union activities.