Court of Appeal rules that UK law does not prevent employers taking action short of dismissal against striking workers

The Court of Appeal in Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening) has ruled that the law does not prevent employers from subjecting workers to detrimental treatment for taking part in industrial action. Whilst this may mean that the UK is in breach of Article 11 of the of the European Convention on Human Rights, it is for Parliament and not the courts to address this issue.

The law provides various protections for employees taking part in industrial action or other trade union activities. This includes an absolute ban on employers dismissing an employee because they have taken part in protected industrial action. However, there is no explicit ban on subjecting employees to a detriment short of dismissal for having taken part in such action.

Employers are only prohibited from subjecting a worker to detrimental treatment for taking part in trade union activities if those activities take place at an ‘appropriate time’. An ‘appropriate time’ means outside of working hours or during working hours with the employer’s consent. Industrial action usually takes place during working hours and it would be unusual for an employer to consent to it.

A previous case dating from 1980 found that employees taking part in industrial action such as strikes were not protected from suffering a detriment under the relevant legislation, although they were of course protected from dismissal. However, the Courts have been grappling with this issue again in recent cases. We look at the latest decision on this point and what it means for employers.

What happened in the case?

Mrs Mercer was a support worker and a workplace representative for a trade union, Unison.

In early 2019, Unison called a series of strikes to take place between 2 March and 14 May. Mrs Mercer was involved in planning and organising these strikes. She also took part in some related media interviews and indicated an intention to participate in the strikes herself.

On 26 March 2019, Mrs Mercer was suspended by her employer for nearly two weeks for abandoning her shift and speaking to the press without prior authorisation. The effect, if not the purpose, of the suspension was to remove her from the premises while the industrial action was in progress. Mrs Mercer was also given a first written warning for leaving her shift, which was overturned on appeal.

Mrs Mercer brought Employment Tribunal proceedings claiming that she had been subjected to a detriment by her employer when it suspended her for participating in the activities of a trade union contrary to section 146 of Trade Union and Labour Relations (Consolidation) Act 1992, TULRCA – which protects workers from suffering a detriment on grounds related to trade union membership or activities.

She argued that the "activities of a trade union" under section 146 included planning and organising industrial action and participating in it. Her employer resisted the claim on the basis that the suspension and disciplinary action were unconnected to trade union activities, and that taking part in industrial action was not an activity protected by section 146.

The Employment Tribunal decided that trade union activities under section 146 excluded participation in industrial action and that TULRCA did not prevent employers from subjecting employees to a detriment short of dismissal for participating in industrial action. Whilst this was a breach of the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights, it was not possible to read section 146 in a way that was compatible with Article 11, because this would "go against the grain" of the legislation. Mrs Mercer appealed to the Employment Appeal Tribunal (EAT).

The EAT agreed with the Tribunal that the exclusion of industrial action from section 146 was a breach of Article 11. However, it concluded that protection from detriment for taking part in industrial action could be read into the legislation to make it compatible with an employee’s human rights to freedom of assembly and to form and join trade unions for the protection of their interests. The Secretary of State, as intervener, was granted permission to appeal.

What did the Court of Appeal decide?

The Court of Appeal allowed the appeal and restored the Employment Tribunal's decision; concluding that UK law does not prevent employers taking action short of dismissal against employees in response to industrial action. Whilst the UK may be in breach of Article 11 of the of the European Convention on Human Rights, it is for Parliament and not the courts to address this issue.

There were two key issues for the Court of Appeal to decide. Firstly, whether the failure to prohibit detrimental treatment of employees taking part in industrial action was a breach of Article 11 of the European Convention on Human Rights. Secondly, if there was a breach, whether it was possible to read the relevant legislation to mean that such detrimental treatment was prohibited.

On the first issue, the Court of Appeal considered that European Court of Human Rights case law did not mean that Article 11 required employers to be unconditionally prohibited from treating workers detrimentally on the ground of having participated in industrial action. However, it suggested that failure to give legislative protection against any sanction short of dismissal for taking official industrial action might put the UK in breach of Article 11, if the sanction was one which struck at the core of trade union activity. It gave two examples of sanctions that, if imposed on employees for taking industrial action, might well amount to a breach of Article 11. For example, if an employer sued strikers for loss of profits caused by their breach of contract in going on strike or where employees returning to work were suspended without pay as a disciplinary measure. This leaves open the question of when treatment of employees who have taken industrial action is a detriment that breaches Article 11.

On the second issue, the Court of Appeal held that section 146 could not be read in a way that addressed the gap in protection for workers. The fact that policy questions were involved in this highly sensitive area was one reason why the Court of Appeal concluded that it should be left to Parliament to address this issue. For example, should workers be protected from detrimental treatment for all industrial action or only official industrial action called by a trade union in compliance with the rules around this? Does Article 11 require protection to be given against every form of detriment in response to industrial action?

The Court of Appeal concluded that it was not appropriate to declare that TULRCA is incompatible with Article 11 in circumstances where the complaint was that there was a gap in the protection provided by TULRCA rather than there being a specific provision which was incompatible. Also, the extent of the incompatibility was not clear and there was more than one way to resolve the issue.

This means that until such time as the government amends the legislation, employees are not protected from suffering detrimental treatment for participating in industrial action.

It seems unlikely that the government will amend TULRCA given that the Secretary of State intervened in the case to appeal against the EAT's decision and argue that the protection granted by section 146, when read with the other protections provided to striking workers, was compatible with Article 11 and struck a fair balance between the rights of employers and those of workers.

What does this decision mean for employers?

Whilst this decision may be welcomed by employers facing industrial action, it may not be the last word on this issue. The Court of Appeal agreed with the Employment Tribunal and EAT that the current level of protection for workers is not satisfactory and potentially breaches their human rights. For public sector employees, they may be able to rely directly on Article 11 against their employer. There is also the possibility of further legal challenges being raised by private sector employees.

We understand that permission has been sought to appeal this case to the Supreme Court, so watch this space to see whether permission is given and if so, what the Supreme Court decides.

The Court of Appeal is also due to hear an appeal from the EAT's decision in Ryanair DAC v Morais and others in which the EAT held that a group of pilots who participated in a strike called by the trade union BALPA were taking part in trade union activities for the purposes of section 146 of TULRCA 1992. Our previous client alert covering this case can be found here. However, the case has been put on hold until the Supreme Court has given a decision on the permission to appeal sought in the case of Mercer.

Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening)