Section 146 of TULRCA is incompatible with Article 11 of the European Convention on Human Rights as it fails to protect workers from detriment short of dismissal for participating in lawful strike action.

JUDGMENT

LADY SIMLER (With Whom Lord Lloyd-Jones, Lord Hamblen, Lord Burrows And Lord Richards Agreed):

Introduction

[1] Employees who are dismissed for taking part in lawful strike action have some statutory remedies for unfair dismissal, but there is no express statutory (or other) protection in domestic law against action short of dismissal for employees, or indeed, workers who participate in lawful strike action. The question on this appeal is whether s 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") can properly be interpreted as extending to provide such protection, and if not, what is the consequence?

[2] Fiona Mercer, the appellant, was, at all material times, employed as a support worker in the care sector by Alternative Futures Group Ltd ("AFG"), a care services provider. As a UNISON workplace representative, she was involved in planning and took part in lawful strike action at her workplace. She was suspended by her employer. During her suspension, she received normal pay, but received nothing for the overtime she would normally have worked. The effect, if not the purpose, of the suspension was also to remove her from the workplace while the industrial action was in progress. She complained to an Employment Tribunal that the decision to suspend her was taken for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union "at an appropriate time" or penalising her for having done so. Her claim was disputed as a matter of fact (her employer argued that the suspension was because she abandoned her shift without permission and spoke to the press without permission) and as a matter of law.

[3] As a matter of ordinary domestic construction, s 146 of TULRCA has been interpreted as not providing protection from detriment short of dismissal to workers engaged in lawful strike action. This is because the words "at an appropriate time" are defined to exclude working time (save where the employer has consented to the activities in question) so that they limit the protection available to activities which are outside working time and/or not inconsistent with the worker's performance of their primary duties to their employer. However, the appellant argues that the protection afforded by art 11 of the European Convention on Human Rights ("the Convention"), together with the strong interpretative obligation in s 3 of the Human Rights Act 1998 ("the HRA"), make it possible to construe s 146 compatibly with art 11 to offer extended protection to workers for detriment short of dismissal for participation in lawful strike action.

[4] This case has proceeded on assumed facts to determine the scope of s 146 as a preliminary question of law. It is assumed for these purposes that the decision to suspend the appellant was taken to deter her participation in lawful strike action. In the Employment Tribunal, Employment Judge, Franey, (who expressed well-founded reservations about whether it was appropriate to proceed in this way) held that, as a matter of domestic law, s 146 of TULRCA does not extend protection to participation in lawful strike action and could not be interpreted compatibly, even using the s 3 interpretative obligation. On appeal, the Secretary of State for Business and Trade (referred to below as "the Secretary of State") intervened to support the Employment Tribunal's decision. The decision was reversed by the Employment Appeal Tribunal: [2021] ICR 1598. Choudhury J (President) held that a compatible interpretation with art 11 was both necessary and possible by adding an additional limb to the definition of "appropriate time" in s 146(2), namely "(c) a time within working hours when he is taking part in industrial action".

[5] The Secretary of State (but not the employer) appealed. In the Court of Appeal, Ms Mercer recognised that the formulation of additional limb (c) went too far because it did not qualify the type of industrial action