Striking workers not protected from actions short of dismissal, Court of Appeal rules

But while decision allows businesses to sanction staff who take part in industrial action, experts urge caution around the impact on employee relations

Employees who take part in strike action are not protected from any sanctions short of dismissal, the Court of Appeal has ruled.

The decision has the effect of allowing organisations to take action against employees taking part in industrial action, including depriving them of non-contractual benefits, as long as they are not dismissed for their participation, experts have said.

However, businesses are still advised to “exercise caution”, as experts stress this is still a nuanced area of law and that any sanctions could have a wider impact on employee relations.

The decision comes after the government asked the Court of Appeal to reconsider an earlier case in which the Employment Appeals Tribunal (EAT) found that the European Convention on Human Rights (ECHR) – which provides a right to express an opinion and the right to assembly – protected an employee who had participated in a strike.

However, the Court of Appeal ruled that, despite what the ECHR said, the UK had not implemented the primary legislation necessary to protect employees in this way.

Alan Lewis, partner at Constantine Law, said this meant that under UK law, employers could “take action short of dismissal where an employee participates in industrial action”, for example by depriving strikers (but not those employees who continued to work) of non-contractual benefits.

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This was echoed by Samantha Dickinson, partner at Mayo Wynne Baxter, who agreed that UK employers were now on firmer ground if they wanted to act against staff in similar circumstances. But, while the decision was binding on lower courts and the Court of Appeal going forward, she warned that firms “still need to exercise caution as the law in this area is highly nuanced”.

Rachael Knappier, director of service at Croner, added that firms still needed to consider the wider impact that any actions against workers could have on employee relations, particularly when there was already an ongoing dispute – suggesting firms analyse the risks and benefits and “weigh up whether [action against a worker} will achieve the organisation’s goals in the most effective way”.

“Employers may ultimately be happy with a compromise which is negotiated and agreed through union representatives, but if staff are already disengaged as a result of the process, they could face resignations, absences and reduced productivity,” she explained. 

The case was initially brought by Fiona Mercer, a care worker employed by Alternative Future Group, after she was disciplined for her participation in a series of strikes between March and May 2019.

Alternative Future Group claimed Mercer had spoken to the press without authorisation and abandoned her shifts twice, and as result suspended her and gave her a written warning.

In the initial employment tribunal, Mercer argued that she was protected from unlawful detriment in response to industrial action by the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992. However the tribunal ruled that, in Mercer’s circumstances, her employer was allowed to take disciplinary action short of dismissal.

This was overturned by the EAT, which said this interpretation of the TULRCA was not compatible with articles 10 and 11 of the ECHR that provide the right to express an opinion and the right to assembly.

While Alternative Future Group did not seek to appeal the EAT decision, the secretary of state for business, energy and industrial strategy applied for permission to appeal as intervener and took the case to the Court of Appeal, which found the initial employment tribunal to be correct.

A spokesperson for the Department for Businesses, Energy and Industrial Strategy said: “The Government notes the judgment of the Court of Appeal. We will consider it carefully.”

Alternative Future Group has been contacted for comment. Mercer could not be reached.