In a welcome decision for employers the Court of Appeal has ruled that protection against detriment on the grounds of ‘trade union activities’ does not extend to strike action. It is an important and welcome decision for businesses with trade union relationships, particularly in situations where an employer contemplates taking action against those striking, other than deducting pay for work not done during the strike. The ruling reasserts the previously held, orthodox, view on this point.
The case was brought by Fiona Mercer - pictured here in iNews. She’s 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.
Under UK law, section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects workers against detriment for taking part in trade union activities at ‘an appropriate time’ – which means outside working hours, or within working hours with the employer’s consent. At first instance the employment tribunal ruled against Mercer on the basis that section 146 did not include participation in lawful strike action. On appeal, that decision was overturned. The EAT 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 Article 11 of the European Convention on Human Rights and therefore section 146 violated human rights law. It is that decision of the EAT that been overturned by the Court of Appeal, restoring the orthodox view on this point. Explaining its decision, the Court of Appeal’s said the effect of an attempt to interpret section 146 in the way the EAT had done would stretch judicial interpretation too far – any change would be a matter for Parliament to decide, not the courts.
Fiona Mercer is backed by UNISON and, as Personnel Today reports, their General Secretary, Christina McAnea, has said they will be appealing to the Supreme Court so this is not the end of the litigation.
Meanwhile, let’s get some reaction to the Court of Appeal’s ruling, what it means for employers and what that appeal to the Supreme Court might mean further down the line. Jon Fisher has been advising on this and he joined me by phone from Leeds to discuss it. I put it to Jon that, as things stand, right now, employers can take comfort in the fact the EAT’s earlier ruling has been overturned:
Jon Fisher: “Yes, I think that is right because this is a Court of Appeal decision but we know that it's already being appealed to the Supreme Court and, obviously, the Court of Appeal has overturned an Employment Appeal Tribunal decision which was in favour of employees in this respect. So whilst the law, currently, is absolutely if you did, for example, suspend somebody, or deduct a bonus, because they've been on strike that would be lawful as the law is today but the way the law works is, if you did that tomorrow and the Supreme Court in 12 months’ time overturns this decision and says, actually, that is not lawful conduct that will be retrospective and so what you do today, based on the Court of Appeal decision, would be deemed unlawful. So you would have broken the law even though that's not what the law says today. So it does mean, given that we know it's gone both ways so far during this appeal process, and we know that it's subject to a further appeal, it does mean that employers ought to be cautious because there is no guarantee that if this were litigated, by the time they make their case reaches the tribunal, that the law will still be in this form. My view is that it should be, that is always the way the law has been understood, and the Court of Appeal’s decision makes an awful lot of sense but, obviously, that's no guarantee that that's where the Supreme Court will land on this, so absolutely worthy of caution. The other point I would make as well, related to this, is the Blacklisting rules. So these are rules which prevent you from drawing up a list of trade union members with a view to somehow penalising them for their trade union membership. They are not necessarily designed to cover this kind of situation but has been held to cover this kind of situation. So if you drew up a list of people on strike with a view to penalising them in some way, such as withholding a bonus, the unions will argue that that is a blacklist, you've created a list of trade union members who are on strike with a view to penalising them for striking which is, effectively, a product of their membership. That is the argument that they will run and, even on today's law, that argument is probably going to succeed. So the question for employers is, even if they wanted to rely on this Court of Appeal decision, how in practice would you be able to implement something which penalised striking workers without drawing up a list of those striking workers for the purposes of then penalising them? That puts employers in a bit of a quandary. It’s not impossible, it’s something which, with advice, they may well feel able to do, but it is something which they need to take a great deal of care over and the suggestions from the union that this is carte blanche for unscrupulous employers to discipline people ‘willy nilly’, that's not right. Certainly, it's not something any employer could be cavalier about despite this decision.”
Joe Glavina: “We’ve mentioned section 146 and the protection workers enjoy under that provision and also, separately, we have the Blacklisting Regulations. If employers make mistakes in those areas what are the consequences potentially?”
Jon Fisher: “In monetary terms, a breach of the Blacklisting Regulations gives rise to a fine, and a breach of the detriment provisions entitles the members concerned to compensation if they bring a tribunal claim, and it will be compensation for the loss they've suffered as a result of the detriment. So there are financial penalties for getting this wrong. A lot of employers may think that the more important aspect of this, the more important risk, is the reputational risk. We have seen the trade union reaction to this Court of Appeal decision which is very much that this is giving unscrupulous employers carte blanche to penalise people for exercising their democratic freedoms to strike should they so choose and that’s the kind of tack which I think you certainly would expect unions to use, even if they were to lose the litigation, and tribunal claims, the employer obviously will suffer potential reputational damage and the legal costs of fighting the litigation and we certainly anticipate that there will be litigation over this. Pending the Supreme Court decision if employers are making these steps and there's an active trade union, I think, absolutely this kind of thing they will issue claims over because they're very hot on this, they've immediately appealed to the Supreme Court, they're investing money in this, it makes quite a big difference to their leverage if people cannot be penalised for taking strike action. So it is something that will be very high profile with the unions so you can expect to be in the glare of their media campaigns as well as their legal campaigns if this is a rescue decide to take on.”
Joe Glavina: “Is the message to HR, in-house legal, listening to this to take legal advice?”
Jon Fisher: “Yes, absolutely take legal advice. This opens up the possibility of taking steps, proportionate, legitimate, steps if somebody is taking strike action but it's something you'll have to navigate very carefully still, despite this decision, and absolutely advice should be sought at an early stage. It's the kind of trap you can wander into quite easily without spotting it so it’s definitely the kind of thing you need advice on at an early stage to set you on the right course.”
The Employment Team at Pinsent Masons has written about the Court of Appeal’s decision in his recent article for Outlaw which is worth reading if you want more detail on how the court arrived at its decision. That’s ‘Employers can take action against striking workers, Court of Appeal decides’ and is available now from the Outlaw website.