Protection from detriment for participating in industrial action should be read into TULRCA

In Mercer v Alternative Future Group Ltd [2021], the EAT held that protection from detriment for participating in industrial action should be read into section 146, in order to make the section compatible with Article 11 of the European Convention on Human Rights (ECHR). The EAT found that excluding industrial action from section 146 struck at the substance of the Article 11 right.

Mrs Mercer worked for Alternative Future Group Ltd as a support worker and was a workplace representative for the trade union, Unison. In early 2019, Unison called a series of strikes which Mrs Mercer was involved in planning and organising. She also took part in some media interviews related to the strikes, and indicated an intention to participate in the strikes herself. Mrs Mercer was suspended by the employer and subsequently disciplined with a first written warning.

Mrs Mercer issued a claim in the employment tribunal on 23 August 2019 on the basis that she had been subjected to a detriment (suspension and disciplinary action) for participating in the activities of a trade union contrary to section 146 of TULRCA 1992. She contended that the "activities of a trade union" under section 146 included participating in industrial action. The employer resisted the claim on the basis that the suspension and disciplinary action were unconnected to trade union activities, and that taking part in industrial action was not protected by section 146.

The tribunal held that, as a matter of ordinary language, participation in industrial action was part of the activities of a trade union. However, the proper interpretation of section 146 of TULRCA 1992 was that it did not extend to any form of industrial action. The relevant case law of the European Court of Human Rights (ECtHR) made it clear that a lack of protection from detriment for participating in industrial action was a breach of Article 11 of the ECHR. However, the tribunal found that it was not possible for section 146 to be interpreted in a way that was compatible with Article 11.

The EAT allowed Mrs Mercer’s appeal. The EAT agreed with the tribunal that, as a matter of ordinary language, the phrase "activities of a trade union" would include participation in industrial action; it was also a well-established principle of domestic law that section 146 excludes participation in industrial action. In the EAT's view, the case law showed that the 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. Therefore, the UK's failure to provide protection against action short of dismissal for participating in strike action interfered with Article 11 rights. The EAT accepted that the area of trade union rights involved sensitive social and political issues and consequently a wide margin of appreciation would apply to restrictions on "secondary or accessory" aspects of trade union activity. However, where a restriction strikes at the core of trade union activity, a lesser margin of appreciation will apply and more will be required to justify interference. The lack of protection for participating in industrial action struck at the very substance of freedom of association and so the margin of appreciation was narrow.

Having determined that the failure of section 146 to encompass industrial action interfered with rights under Article 11, the EAT considered whether this interference was justified and found that it was not. The exclusion of industrial action from section 146 served no objective. The employer and Secretary of State had argued that the exclusion was necessary to relieve employers of the need to pay striking workers, but it was not in dispute that employers were entitled to withhold pay in such circumstances. The EAT also rejected the argument that the exclusion had a legitimate aim in permitting employers to discipline or otherwise penalise employees who have breached their contract by participating in strike action. To permit disciplinary action against workers simply for exercising the right to strike would be fundamentally in contradiction with the ECtHR authorities; there was therefore a violation of Article 11.

Having established a breach of Article 11, the EAT next had to consider whether section 146 needed to be read differently, under section 3 of the Human Rights Act 1998 (HRA), to give effect to Article 11. The employer argued that it was not possible to interpret section 146 as extending to participation in industrial action as this would mean that the phrase "activities of an independent trade union" would have different meanings in sections 146 and 152 of TULRCA. The EAT stated that this inconsistency was not in itself sufficient reason to reject the interpretation. However, it observed that the inconsistency could indicate that the interpretation went against the grain of the legislation, which would be sufficient reason to reject it. To determine the grain of the legislation, the EAT considered the legislative history of the provisions. It found that the protection against unfair dismissal for trade union activities granted by section 152 had developed separately to the protection against detriment for trade union activities granted by section 146. The two provisions did not necessarily have the same underlying thrust or grain. Further, there was nothing in the legislative history which indicated that there was any intention to impose a limitation on rights under the ECHR when it came to action short of dismissal for participating in industrial action. On the contrary, Parliament had made it clear that its intention was for trade union law to be compliant with the ECHR. There was therefore nothing to suggest that the "grain" of the legislation was to exclude protection against detriment for those participating in industrial action. Indeed, the very fact that dismissal for participation in industrial action is protected (albeit in limited circumstances) militated against any argument that it was a cardinal feature of TULRCA that protection against detriment should not be protected. It was anomalous that those taking part in official strikes are protected against unfair dismissal by section 238A of TULRCA but have no protection for action short of dismissal.

In addition, the fact that protection under section 146 only applied to activities undertaken "at an appropriate time" did not unequivocally exclude industrial action. Although "appropriate time" was defined in section 146(2) as meaning outside working hours, industrial action could take place outside of working hours. Since the definition of "appropriate time" did not clearly and unambiguously exclude industrial action, it was amenable to being interpreted consistently with ECHR rights.

The employer's final line of attack against reading section 146 in a way that was compatible with Article 11 was that no precise form of wording could be devised to achieve the desired interpretation. The EAT did not accept that the lack of a precise form of wording was sufficient to defeat the interpretative obligation under section 3 of the HRA 1998. However, in any event, it found that a "sufficiently clear" form of wording had been proposed: namely, the addition of the following new sub-paragraph in section 146(2), to ensure that the definition of "appropriate time" should include "(c) a time within working hours when [the worker] is taking part in industrial action".

The EAT therefore allowed Mrs Mercer's appeal and held that section 146 should be read as encompassing participation in industrial action.

An appeal in Mercer is due to be heard by the Court of Appeal on 26 or 27 January 2022.