Employers can take action against striking workers, Court of Appeal decides

In a key case for businesses with trade union relationships, the Court of Appeal said a worker who was suspended and docked her pay for taking part in industrial action could not suggest she was subjected to a detriment for taking part in trade union activities by the health and social care charity for which she worked.

The court’s ruling overturned the decision of the Employment Appeal Tribunal (EAT), which had suggested UK trade union legislation was incompatible with Article 11 of the European Convention on Human Rights (ECHR) governing the freedom of assembly and association.

The case was brought by Fiona Mercer, a support worker for health and social care charity Alternative Future Group, who was a representative for trade union UNISON. In 2019 Mercer was involved in organising and participating in a series of strikes over pay, and was interviewed by the press about the industrial action.

Mercer was suspended, and in her complaint to the employment tribunal alleged the decision had been taken for the sole or main purpose of preventing or deterring her from taking part in trade union activities, or penalising her for having done so.

In a 2020 judgment the employment tribunal ruled on the issue of whether the ECHR meant that activities protected by section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) extended to participation in lawful industrial action as a trade union member.

TULCRA protects workers against detriment for taking part in trade union activities at ‘an appropriate time’ – outside working hours, or within working hours with the employer’s consent.

The employment judge said trade union activities protected by section 146 of TULCRA did not include participation in lawful strike action, and dismissed Mercer’s complaint.

However, the EAT disagreed. It said case law from the European Court of Human Rights in Strasbourg showed that any restriction on the right to participate in a trade-union sanctioned strike interfered with an individual’s rights under the ECHR, and therefore section 146 violated human rights law.

The secretary of state for business, energy & industrial strategy, which had intervened at the EAT, appealed that decision and the Court of Appeal upheld the appeal.

Although the court acknowledged that the failure in legislation to protect against any sanction for industrial action apart from dismissal could put the UK in breach of the ECHR, it said it was “far from obvious” that article 11 required protection against every form of detriment in response to industrial action.

The court said the effect of an attempt to interpret section 146 of TULCRA this way “would result in impermissible judicial legislation and not interpretation”.

The Court of Appeal specifically asked itself the question whether the law of each state was required to provide that the employer would be acting unlawfully if the employees on strike were refused a discretionary bonus or were refused an internal promotion. The court accepted the European Court of Human Rights case law did not give a clear answer to these questions. These were issues of policy in a highly sensitive area and therefore best left to Parliament.

Trade union expert Jonathan Coley of Pinsent Masons said: “This decision is helpful for employers and has restored the legal position to what had previously been thought to be the case. That said, employers still need to tread very carefully before taking any action against striking workers other than deductions of pay. This is an area where there are a number of potential bear traps for employers, including potentially falling foul of the Blacklists Regulations.”

“The judgment is clear that it was reached divorced from the underlying facts of the case as it was a preliminary hearing. A court may take a different view on a specific case dependent on the reasonableness or proportionality of an employer's actions and whether they strike at the core of trade union activity,” Coley said.