In Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening), the Court of Appeal (CA) held the Employment Appeal Tribunal (EAT) was wrong to read protection from detriment for having participated in strike action into section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

This long-running case discusses whether employees engaging in strike action should be protected from potential disadvantage and prejudice by their employers. We summarise the latest court decision and what you need know about your employees’ rights in the event of industrial action.

Background

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, but the EAT overturned this decision in June 2021, thus extending the scope of protection for employees taking part in or preparing for industrial action under section 146 of TULCRA (see our insight on that case here).

In November 2021, the EAT cemented that decision and extended the protections for striking employees even further in the case of Ryanair v Morais and others, finding that both Section 146 of TULCRA and Regulations 3 and 9 of the Blacklisting Regulations apply to all union industrial action, without qualification or restriction (see our insight on that case here).

The Secretary of State (as intervener in the Mercer case) appealed against the decision.

The Court of Appeal’s decision

The Court held that “section 146 does not provide protection against detriment short of dismissal for taking part in or organising industrial action” and this failure, “may put the United Kingdom in breach of article 11” but only “if the sanction is one which strikes at the core of trade union activity.”

However, it was not appropriate to declare Section 146 as incompatible with article 11 and/or interpret it in a way that would resolve the “legislative gap” as to do so in circumstances where;

• the issue has more than one solution,
• it raises a number of policy questions that are best left to Parliament, and,
• the extent of the incompatibility is unclear,

would amount to impermissible judicial legislation (as opposed to permissible judicial interpretation).

What to take away

This decision effectively restores the “status quo” in industrial relations law: only employees involved in industrial action which is lawfully organised and compliant with balloting requirements are protected by Section 146. Given that the Secretary of State initiated the appeal, it is unlikely that there is any appetite to amend Section 146.

However, this is not the last word on the matter. UNISON (who is supporting the Claimant) have stated that they intend to appeal to the Supreme Court. An appeal against the EAT’s decision in the Ryanair v Morais case was due to be heard by the Court of Appeal by 20 November 2022, but we understand that this has been put on hold until the outcome of any further appeal in Mercer is known.

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, as well as 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.