The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides that in relation to taking part in industrial action, there will in prescribed circumstances be protection against dismissal. Separately, it provides that employees taking part in trade union activities benefit from protection against any detriment or dismissal.
It has been held that those taking part in strikes or other industrial action are not carrying out trade union activities leaving striking employees without any legal recourse in respect of action taken against them short of dismissal.
In Mercer v Alternative Future Group Ltd the question was whether further words should be read into the statutory provisions to provide protection in these circumstances on the grounds that the legislation may otherwise be in breach of the European Convention on Human Rights (ECHR).
Mrs Mercer was a support worker for a charity providing a range of care services across the North West. She was also a workplace representative for her trade union, Unison.
A dispute arose regarding payments for sleep-in shifts which had led to Unison calling a series of strikes. Mercer was involved in planning and organising the strikes. In that capacity she also gave an interview to an online news publication in which she stated her intention to participate in the strikes.
As a result, she was suspended from work and disciplinary action taken against her on the grounds she had abandoned her shift on two separate occasions without permission, and that she had spoken to the press about the strike action without prior authorisation.
Despite the fact that the suspension had been lifted and Mercer successfully appealed the first written warning that had been imposed she brought proceedings claiming that she had been subjected to a detriment for taking part in trade union activities.
It was held that, as a matter of ordinary language, participation in industrial action was part of the activities of a trade union. However TULRCA had been drafted in such a way that industrial action had been treated as separate and distinct from union activities. The UK case law had accordingly construed trade union activities as not including any form of industrial action.
Given that decisions of the European Court of Human Rights had established that a lack of protection from detriment for participating in industrial action was a breach of the right to freedom of assembly and the right of workers to form and join trade unions for the protection of their interest it was apparent that TULRCA was not compliant with the ECHR.
While there was a duty to construe all legislation in such a manner as to effectively make it compatible with the ECHR, even by adding words, this was not possible in relation to TULRCA as it would be so inconsistent with the wording it would ‘go against the grain’ of the legislation.
The Court of Appeal’s decision that despite a potential breach of the ECHR it was not possible to read down further words into TULRCA reversed the decision of the Employment Appeal Tribunal in 2021 that suggested amending words should be read into the statute.
One of the main objections to adding new words was that there was more than one possible solution to the problem so that any change would raise policy issues in relation to whether protection should be subject to time limits and whether it would apply to all industrial action or only to official industrial action called by the trade union. These would be matters for Parliament rather than the courts to assess.
Chris Kisby is an employment partner at Gateley Legal