Employment Law Cases
Industrial action and protection from detriment
Workers are not protected against being subject to a detriment by their employer for participating in industrial action.
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.
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.
Court of Appeal decision
The appeal was allowed.
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.
It is an odd situation that a union official is not protected from their employer subjecting them to a detriment, if they have been taking part in lawful industrial action, but on the strict letter of the law, this is what it says. However, the Court of Appeal is correct that 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, politically it is probably not the time to be emphasising that we are absolutely still bound by the ECHR and very few countries would do business with us if that were not the case!