UK strike law incompatible with human rights

In Secretary of State for Business and Trade v Mercer the Supreme Court has held that UK industrial action law does not protect workers from being subject to detrimental treatment for taking part in lawful strike action (provided that they are not dismissed).

However, the Court also went on to make an exceptional finding that, in failing to provide this protection, the relevant provision — s146 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) — falls short of the required standard and is incompatible with the European Convention on Human Rights (ECHR).

What happened?

The appellant, Ms Mercer, was employed as a support worker in the care sector by a care service provider, Alternative Futures Group Ltd (AFG). As a workplace representative of UNISON, she was involved in planning and took part in lawful industrial action. She was subsequently suspended by AFG. While suspended, Ms Mercer received normal pay, but was unable to earn pay for the overtime she would normally have worked.

She brought a claim against her employer under s146 TULRCA on the basis that she had suffered detrimental treatment done 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.

The decision

A key consideration for the Supreme Court was the meaning of the words “at an appropriate time” in s146. Previous cases in the Employment Appeal Tribunal (EAT) have held that these words are defined to exclude working time and are limited to activities which are outside working hours. Industrial action takes place during working time and so does not fall within the definition. This interpretation seems to be reinforced by other parts of TULRCA.

The Supreme Court agreed with this interpretation of UK law and held that:

• S146 does not provide protection against detriment short of dismissal where the employee has taken part in a lawful strike. The phrase ‘appropriate time’ does not currently include working time where the employee is engaged in strike action.
• S146 cannot realistically be interpreted as providing this protection (e.g. by adding in additional words - as the ET attempted to do earlier in the proceedings)
• This gap in protection effectively nullifies the right to strike, as employee are unable to take part in lawful strike action without exposing themselves to detrimental treatment. In that sense, s146 ‘both encourages and legitimises unfair and unreasonable conduct by employers’. This is incompatible with Article 11 ECHR (Freedom of Assembly and Association).

The Supreme Court findings are very similar to the earlier findings of the Court of Appeal. The key difference is that the Supreme Court also chose to make a ‘declaration of incompatibility’ under s4 Human Rights Act 1998 (stating that s146 cannot be interpreted compatibly with Article 11) whereas the Court of Appeal declined to do so.

Crucially though, a ‘declaration of incompatibility’ ‘does not affect the continuing validity of the relevant provision, and nor is it binding on the parties to the proceedings’. In other words, it does not change the law; it just flags up an issue which the Government may choose to address by formally changing legislation.

Comment

Now that a ‘declaration of incompatibility’ has been made, it is highly likely that TULRCA will be formally amended to introduce protection against detriment short of dismissal following a strike.

While the Government is not obligated to change the law, it has done so in every previous case where a declaration of incompatibility has been made. There is no prescribed timeline for this. Any future legislation is highly unlikely to be retrospective so will not apply to existing claims.

Making changes to industrial action law is highly unlikely to be a priority for a Conservative Government in a (probable) election year but might feature more highly on the agenda of a future Labour government.
In any event though, employers may wish to pre-empt a change in the law by reviewing their strategies and procedures around industrial action, specifically how participating employees are dealt with post-strike. This case makes a clear statement that subjecting employees to any detriment short of dismissal, while not currently unlawful in the UK, is likely to be in breach of ECHR principles. It would make sense from both a legal and industrial relations standpoint to identify and tackle any risk areas as soon as possible.

The Supreme Court is the highest domestic court in the UK, so is usually the final avenue of appeal available to the parties. However, in this judgement, the Supreme Court states that the appellants may pursue the matter further in Strasbourg if dissatisfied with the outcome.

Any such further action would likely be against the Government, rather than the employer, if the Government fails or refuses to change legislation to rectify the incompatibility issue identified by the Supreme Court. In reality though, this would likely be prohibitively costly and time-consuming (2-3 years to get a decision).