Industrial action participation - protection from detriment cannot be read into TULR(C)A

Blog | Employment
Published: 11th May 2022
Area: Corporate & Commercial

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In a further case of real interest to those involved in unionised sectors of the economy, the Court of Appeal has now overturned the Employment Appeal Tribunal’s (EAT) decision that S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which provides protection to workers against detriment arising from union membership or activities, should be read as encompassing participation in industrial action.

The background of the case

Mercer v Alternative Future Group Ltd and anor

Mercer was a support worker at Alternative Future Group Ltd and a workplace representative for UNISON, her trade union.  Mercer was involved in planning and organising strikes and participated in media interviews in relation to them.

Mercer was suspended, and she was informed this was because she abandoned her shift on two occasions without permission and that she had spoken to the press without prior authorisation.  Mercer was issued with a first written warning for abandoning her shift.

Mercer made an employment tribunal claim under S.146 TULR(C)A, which protects workers from detriment associated with trade union membership or activities. The legislation does not expressly confer protection from detriment for participating in industrial action. An employment judge found that interpreting S.146 as extending to industrial action would go against the grain of the legislation.

Mercer appealed to EAT.  The EAT concluded it was possible to interpret S.146 compatibly with Article 11 of the European Convention on Human Rights, and therefore provide protection from detriment arising from taking industrial action, by adding additional words to the legislation.

The decision was appealed to the Court of Appeal.  The Court of Appeal restored the employment judge’s decision.

What are the key points in this case?

The effect of interpreting S.146 as extending to industrial action would go against the grain of the legislation and if parliament had intended for there to be a right to make a claim of detriment arising in respect of having taken industrial action, it would have expressly legislated for that fact.

Furthermore, under European Court of Human Rights case law, it is not established that a state’s positive obligations under Article 11 require that private employers should be unconditionally prohibited from treating workers detrimentally, in relation to having participated in industrial action.

What does this recent case highlight for employers?

This decision is an important one regarding the protection for workers taking part in industrial action, or rather the lack of it, and reinstates the legislated position that protection from detriment cannot be read into TULR(C)A in relation to participation in industrial action. It also provides clarity for employers, after a period of uncertainty as a result of recent case law development, and ultimately reduces the likelihood of meritorious claims arising from employees after a period of industrial action.

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