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Industrial action and protection from detriment
Secretary of State for Business and Trade v Mercer
The Trade Union and Labour Relations (Consolidation) Act 1992, which protects workers from detriment for taking part in trade union activities, does not provide protection from detriment for participating in lawful strike action – and this lack of protection is incompatible with the right to strike under art. 11 of the European Convention on Human Rights.
Employers are not allowed to subject workers to a detriment for the sole or main purpose of preventing or deterring them from taking part in trade union activities or penalising them for doing so (s. 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)). The issue in this case was whether someone can claim under this provision where the activities in question were industrial action.
Background
Ms Mercer, a support worker and UNISON workplace rep, organised and took part in lawful industrial action. She was subsequently suspended and given a warning (later overturned) for leaving her shift and speaking to the press. She claimed that this amounted to a detriment short of dismissal under s. 146.
At a preliminary hearing, a tribunal held that she couldn’t pursue such a claim because, as a matter of domestic law, trade union activities did not include taking part in industrial action. While a lack of protection from detriment for participating in industrial action infringed art. 11 of the European Convention on Human Rights (ECHR), the tribunal held that s. 146 could not be construed in a compliant manner without going against the grain on the 1992 Act. The EAT allowed Ms Mercer’s appeal. It held that under the ECHR, trade union activities did encompass industrial action and was prepared to read words into s. 146 to give effect to the ECHR. The employer didn’t appeal but the Secretary of State did, arguing that the protection afforded by s. 146 wasn’t in breach of art. 11 of the ECHR and that in any event the EAT went beyond the limits of statutory construction in holding that it was.
The appeal was allowed by the Court of Appeal. The 1992 Act does not provide protection against detrimental treatment short of dismissal for taking part in or organising industrial action. This may be a breach of an individual’s right to freedom of association and a breach of the government’s obligation under the ECHR to secure protection against action short of dismissal for employees who are participating in official industrial action. Although the lack of protection against any sanction short of dismissal for participating in industrial action may breach art. 11, it was not, held the Court of Appeal, appropriate for the courts to interpret s. 146 purposively by adding additional wording, given that there was more than one possible solution and the issue raised several policy questions (e.g. how long any protection should last and what types of detriment should be covered). It was for Parliament, not the courts, to deal with such issues. A court’s role is to interpret, not to legislate. Ms Mercer, supported by UNISON, appealed.
Supreme Court decision
The appeal was unanimously allowed, to the extent that the Supreme Court made a declaration that s. 146 is incompatible with art. 11.
The Supreme Court agreed with the Court of Appeal’s analysis of s .146. As a matter of domestic interpretation, s. 146 does not provide protection from detriment short of dismissal to workers participating in lawful strike action because of the words ‘at an appropriate time’, which are defined to exclude working time (except with the employer’s consent). Protection is therefore limited to activities which are outside working hours and/or done at a time that is not inconsistent with the worker’s job responsibilities.
The legislation must strike a fair balance between the competing interests of employers and workers, and any restriction on art. 11 rights must be justified. The absence of any protection for a worker faced with a disciplinary sanction short of dismissal for taking part in a lawful strike nullifies the right to strike, as workers are unable to strike without exposing themselves to detrimental treatment. In that sense, s. 146 both encourages and legitimises unfair and unreasonable conduct by employers. Had there been legislation addressing detrimental treatment short of dismissal for lawful strike action, it might be possible to say that a fair balance had been struck. However, no protection is provided and this places the UK in breach of its obligations under art. 11.
As to a remedy, the Supreme Court agreed with the Court of Appeal that it could not read words into s. 146 that would avoid it having to make policy choices – and this would amount to impermissible judicial legislation. However, unlike the Court of Appeal, the Supreme Court felt able to make a declaration of incompatibility that s. 146 is incompatible with art. 11, in so far as it fails to provide any protection against sanctions short of dismissal intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.
Comment
It is not the job of the courts to write the law, only interpret it and the government, knowing that the law has been found to infringe the ECHR, needs to take steps to amend it. However, as a great many UK citizens seem to have mistakenly believed that voting to leave the EU meant we would no longer be bound by the ECHR, we are absolutely still bound by the ECHR and very few countries would do business with us if that were not the case! The government is therefore going to have to change the law to reflect the ECHR otherwise individual workers who are subject to detriment will have the option of going to the European Court of Human Rights.