Detriment in Industrial Action Cases
In this article our Partner, Paul Scholey looks at detriment in industrial action cases by examining the Mercer decision.
Detriment in Industrial Action Cases – the Mercer Decision
Unhappily, the Court of Appeal has reversed the decision of the Employment Appeal Tribunal in this ground breaking case.
Mrs Mercer was disciplined after taking part in strike action.
She alleged that she had suffered a detriment, contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 – which protects Trade Union Members from suffering detriments because of the Trade Union activities they are involved in.
It had long been accepted that for this purpose ‘Trade Union activities’ did not include participation and industrial action.
The Employment Tribunal in Mercer disagreed – and the EAT went on to say that it was possible to read Section 146 in a manner that was compatible with Article 11 of the European Convention on Human Rights – the right to freedom of assembly (including the right to participate in the activities of a Trade Union).
The EAT Decision was widely regarded as a high watermark in recent years for judicial activism in favour of Trade Unions. The right to participate in industrial action is substantially diluted if an Employer is free to discipline or otherwise act detrimentally towards those who seek lawfully to participate in that action.
The Court of Appeal has, in effect, overruled the EAT’s decision on a technicality.
The Court of Appeal agrees that Section 146, as it currently stands, flies in the face of Article 11. What the Court of Appeal has held, however, is that it has no power to read words into Section 146 to change its effect.
So, we are left with a law in the UK that puts us in direct contravention of Article 11 of the European Convention – but the Courts now say that it is for Parliament to intervene to change that. Parliament of course will have no intention of doing that in the near future.
It is to be hoped that the case will be appealed to the Supreme Court and that the Supreme Court takes a purposive view (as it has shown itself willing to do, e.g. in the Uber case on employment status recently).
In the meantime, the law reverts to where it was pre-Mercer – employees who are victimised for taking part in industrial action are not going to be able to take advantage of the protection afforded by Section 146.
