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 i