Industrial action – no protection for detriment

The Supreme Court has handed down an important decision confirming that workers cannot bring a claim for detriment on the grounds that they have taken part in industrial action, which is in breach of their human rights. 

Secretary of State for Business and Trade v Mercer [2024] UKSC 12 

Facts of the case 

Ms Mercer was employed as a support worker in the care sector and was a workplace representative for UNISON. She was involved in planning and taking part in lawful strike action, about which she also spoke to the media without the employer’s authority. Her employer, Alternative Futures Group Ltd (AFG) suspended her on full pay, and later issued her with a written warning for abandoning her shift. This meant that during her suspension she was unable to receive extra pay for any overtime. 

Ms Mercer claimed that she had suffered a detriment within the meaning of section 146 Trade Union and Labour Relations (Consolidation) Act 1992. This provides that an employer must not subject workers to a detriment for the sole or main purpose of deterring them from taking part in the activities of an independent trade union. However, previous case law has established that taking part in industrial action is not an activity protected under Section 146; it only applies to activities outside of working hours or done with the employer’s consent. Workers are therefore protected from being unfairly dismissed for taking part in industrial action, but not from being subjected to a detriment.  

An employment tribunal held that Ms Mercer could not bring a claim under Section 146, but went on to consider whether the provision could be interpreted as compatible with Article 11 (right to freedom of association and assembly) of the European Convention on Human Rights (ECHR). It held it was unable to do so, meaning that Ms Mercer’s claim failed. This decision was overturned on appeal to the EAT, which held that the wording of Section 146 could be construed as compatible with Article 11 by inserting some additional wording.  

The Secretary of State, who intervened in the proceedings, successfully appealed the EAT’s decision to the Court of Appeal. The Court held that the lack of protection against any sanction short of dismissal for participating in industrial action may well breach Article 11, but it was not appropriate to interpret Section 146 to comply with Article 11 simply by inserting additional wording. The Court refused to make a declaration of incompatibility under the provisions of the Human Rights Act 1998. 

Ms Mercer appealed the Court’s decision to the Supreme Court. 

Supreme Court decision 

The Supreme Court has unanimously upheld the appeal and has made a formal declaration that Section 146 is incompatible with Article 11 ECHR as it fails to protect workers from being subjected to any detriment short of dismissal for taking part in lawful strike action. 

The Birketts view 

The Supreme Court’s decision does not have any immediate effect on the current legislation, meaning that it remains in place until such time as Parliament takes the necessary steps to amend it. This means that workers are currently unprotected from being subjected to a detriment short of dismissal by their employer for taking part in industrial action. It will be a matter for Parliament to decide how best to strike a balance between the competing interests of employers and workers in this regard, when amending the legislation. A failure to take the necessary steps to ensure the legislation complies with Article 11 could result in further action being taken against the Government at the European Court of Human Rights in Strasbourg.  

In view of the impending General Election, it is doubtful that the Government will take any immediate action to redraft this statutory provision, although it is perhaps more likely to be prioritised by a Labour government (should they succeed in being elected). Employers should remain cautious in subjecting any striking workers to a detriment in the meantime, to avoid being accused of acting in a manner now acknowledged to breach workers’ human rights.