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2024 MarsdenLR 1654
SUPREME COURT UNITED KINGDOM
SECRETARY OF STATE FOR BUSINESS AND TRADE (RESPONDENT) – Appellant
Versus
MERCER (APPELLANT) – Respondent
[]
Section 146 of TULRCA does not provide protection against detriment short of dismissal for lawful strike action, potentially breaching Article 11 of the ECHR.
Headnote:(A) Trade Union and Labour Relations (Consolidation) Act 1992 - Section 146 - Employment Rights - Lawful strike action - The court considered whether s 146 provides protection against detriment short of dismissal for employees participating in lawful strike action. It concluded that s 146 does not extend such protection, resulting in possible incompatibility with Article 11 of the European Convention on Human Rights. (Paras 1-121)
(B) Human Rights Act 1998 - Section 3 - Interpretation of legislation - The court examined the interpretative obligation under s 3 of the HRA and determined that a compliant construction of s 146 was not possible without judicial legislation. (Paras 91-106)
(C) Declaration of Incompatibility - The court granted a declaration under s 4 of the HRA that s 146 is incompatible with Article 11 for failing to protect against sanctions short of dismissal for participation in lawful strike action. (Paras 110-121)
Facts of the case:
The appellant was suspended for participating in lawful strike action and claimed that this constituted a detriment under s 146. The Employment Tribunal held that s 146 did not protect against such detriment.
Findings of Court:
The court found that s 146 does not provide the necessary protection for lawful strike action, potentially breaching Article 11.
Issues: Whether s 146 provides adequate protection for workers participating in lawful strike action and if it is compatible with Article 11.
Ratio Decidendi: The court ruled that the absence of protection under s 146 for detriment short of dismissal for lawful strike action is incompatible with Article 11, and that a compliant interpretation of s 146 is not possible without legislative action.
Result: Appeal allowed with a declaration of incompatibility.
JUDGMENT
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
