The Employment Appeal Tribunal (EAT) has held in Mercer v Alternative Future Group Ltd and anor (Secretary of State for Business, Energy and Industrial Strategy intervening) that lack of protection from detriment for having participated in strike action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) was a breach of Article 11 of the European Convention on Human Rights (right to freedom of assembly) and that such protection should therefore be read into section 146.

Mrs Mercer has been employed by Alternative Future Group Ltd since 2009.  At the time of the relevant events Mrs Mercer was the Group's Acting Chief Executive and a workplace representative for the trade union, Unison.  A series of strikes were arranged to take place between 2 March and 14 May 2019 and Mrs Mercer was involved in planning and organising the strikes, took part in some media interviews related to the strikes, and indicated an intention to participate in the strikes herself.  She was suspended by the Group for nearly two weeks and subsequently disciplined.  She issued a claim on the basis that she had been subjected to a detriment for participating in the activities of a trade union contrary to section 146 TULR(C)A 1992.

The Group argued that the suspension and disciplinary action were unconnected to trade union activities and that taking part in industrial action was not an activity protected by section 146.  The tribunal agreed, but on appeal the EAT held that the relevant case law showed that the European Court of Human Rights (ECtHR) regarded any restriction on the right to participate in a trade union-sanctioned protest or strike action as an infringement of rights under Article 11. As a result the UK's failure to provide protection against action short of dismissal for participating in strike action was an interference with Article 11 rights. The exclusion of industrial action from section 146 served no objective and the EAT concluded that the section should be read as encompassing participation in industrial action.

Take note:  Following the decision in Mercer employees treated badly, in ways short of dismissal, will now be protected under TULR(C)A 1992.  Employers will have to tread carefully when dealing with employees who are involved in strike action going forward.

Originally published 1 July 2021

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