The Supreme Court is today hearing argument in SoS for Business and Trade v Mercer. The simple, but fundamental question of principle is this: does the law protect against detriment to deter participation in industrial action?
Ms Mercer is a support worker with Alternative Future Group Ltd and a UNISON workplace rep. She assisted in organising lawful industrial action and spoke to the press about it. She was then suspended on the basis that she had left her shift on two occasions and that she had spoken on the press in a way that conveyed confidential information and that was likely to bring her employer into disrepute.
Ms Mercer then brought a claim under s. 146 Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) on the basis, inter alia, that her suspension was a detriment imposed on her for the sole or main purpose of preventing or deterring her from taking part in the industrial action.
What does the relevant legislation say?
TULRCA, s. 146 –
“(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of –
(a) …
(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so…
(2) In subsection (1) ‘an appropriate time’ means –
(a) a time outside the worker’s working hours, or
(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union…, and for this purpose ‘working hours’, in relation to a worker, means any time when, in accordance with his contract of employment…he is required to be at work.”
What’s the issue?
Ms Mercer faces two obstacles:
- TULRCA treats industrial action and trade union activities separately: with Part V regulates industrial action and provides protection from dismissal where a claimant has taken part in industrial action. S. 146 is not found within Part V and it has no direct equivalent in the “industrial action” context.
- Industrial action will generally not take place within the “appropriate time”: industrial action would be deprived of much of its force if it did not take place during working hours.
Lower court decisions
The Employment Tribunal ruled that the protection of s. 146 does not extend to participation in industrial action. It noted that the lack of protection from detriment for participation in industrial action was non-compliant with Article 11 of the ECHR on freedom of assembly and association, which guarantees the right to strike. The question then became whether s. 146 could be construed, applying s. 3 of the Human Rights Act 1998 which requires a court to interpret domestic legislation in a way which is compatible with ECHR rights, so as to render it ECHR compliant. The ET decided that s. 146 could not be so construed.
The EAT adopted the analysis of the ET with the exception that it took the view that it was possible to construe s. 146 so as to be ECHR compliant.
The Court of Appeal also found a breach of Article 11, but disagreed with the EAT on the question of construction under s. 3 HRA. The CA did not think it would be appropriate for the courts to address this lacuna in the law and that the matter should be left to Parliament. As such, it is over to the Supreme Court to decide whether:
- The absence of protection from detriment for participation in industrial action is a breach of Article 11, and if so
- Whether s. 146 can be interpreted to provide such protection.
What does this mean?
Currently, on its face, the law only protects an employee from unfair dismissal for participation in industrial action. As such, an employer may subject an employee to a detriment for participation in industrial action where that detriment does not amount to dismissal. If the Supreme Court allows the appeal before it, this ability of employers to disincentivise participation in industrial action will be clearly and decisively curtailed. In the current economic and employment climate, where industrial action is playing an increasingly prominent role, this will have wide-reach implications. According to the Resolution Foundation, in the 12 months to May 2023 3.9 million working days were lost to strikes – this is more than at any point in 1989.[1] No matter how the Supreme Court rules, this case will have a bearing on industrial relations for years to come.
