In Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening), the EAT has held that lack of protection from detriment for having taken part in or prepared for strike action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) breached Article 11 of the European Convention on Human Rights (ECHR) and that such protection should therefore be read into section 146.

Background

The Claimant was involved in planning and organising of strike action as part of a dispute over payments for sleep-in shifts. She also gave a media interview about the planned strike action and confirmed that she would be taking part. Consequently her employer decided to suspend and subsequently issued the Claimant with a final written warning for “abandoning her shift”.

The Claimant brought a claim under Section 146 of TULCRA (which protects employees from being subjected to a detriment by their employer for taking part in ‘trade union activities’).

The Employment Tribunal (ET) dismissed the Claimant’s claim as the relevant case law was clear that:

• ‘trade union activities’ under Section 146 did not include preparing for or participating in industrial action; and,
• although the lack of protection from detriment under TULCRA was in breach of Article 11 of the ECHR (right to freedom of assembly and the right of employees to form and join trade unions for the protection of their interests), it was not possible to interpret section 146 in a way that was compatible with Article 11.

The Claimant appealed to the EAT.

The EAT’s decision

The Court held that:

• The case law from the European Court on Human Rights is clear that “any restriction, however minimal, on the right to participate in a trade union-sanctioned protest or strike action as amounting to an interference with Article 11 rights.”
• Therefore, “the failure in the UK to confer protection against action short of dismissal for participating in strike action similarly amounts to an infringement of the Claimant’s Article 11 rights” which could not be justified.
• It was possible to read or give effect to Section 146 in a way that was compatible with Article 11; and so, “s.146 is to be read as encompassing participation in industrial action.”

What to take away

This decision is a significant development in the field of industrial relations law as it extends protection to employees involved in industrial action. It closes a “loophole” in TULCRA that allowed employers to subject workers to detrimental treatment (short of dismissal) because of their involvement, or planned involvement, in industrial action. (It was not uncommon for some employers to take action against those involved in or planning of industrial action).

The wording added in to s146 by the EAT (“participation in industrial action”) also goes further than the protection from dismissal in s234 for “participation in protected industrial action” (“protected” action being that which is lawfully organised and compliant with balloting requirements).  Going forward, we recommend employers exercise caution when dealing with employees who participate in or are involved in preparing for any industrial action.

How Capsticks can help

Unfortunately, it is not always possible to avoid industrial action. Capsticks has significant experience of supporting employers before, during and after a dispute (including delivering training; supporting decision makers and HR involved in resolution of the dispute, management of staff and services and contingency planning; and, defending any legal challenges / claims that may arise).

For further information on how we might assist your organisation, please contact Paul McFarlane, Alistair Kernohan and Chloe Edwards.