Trade Union and Labour Relations
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992), which provides protections for employees who are participating in industrial action, in addition to those participating in other trade union activities. In this update, associate solicitor in employment, Tony Rippon, explores the act further and looks at the case of Mrs Mercer, who faced disciplinary following taking part in a strike.
There is protection against dismissal for taking part in trade union activities and protection from being subjected to a detriment i.e. some kind of disadvantage. Whilst you’d naturally assume that industrial action is a trade union activity, such that you have protection from dismissal and detriment, sadly, that is not how the legislation is drafted. Whilst protection from dismissal for participating in industrial action is specifically catered for, when it comes to detriment, trade union activities have a very specific meaning.
In this case, Mrs Mercer was suspended and disciplined by her employer after taking part in a strike. She issued tribunal proceedings, arguing that she had been subjected to a detriment for participating in trade union activities contrary to section 146 TULRCA 1992.
The Tribunal held that as per the settled case law, trade union activities did not include taking part in a strike, and Mrs Mercer’s claim therefore failed. The short point is that taking part in industrial action isn’t trade union activity being undertaken “at an appropriate time” because it isn’t technically “authorised” by the employer (even though if certain rules are followed, those encouraging it and participating are “immune from suit”), nor does it occur outside of working hours.
This creates something of a lacuna in the law.
The Tribunal did consider that Mrs Mercer’s right to freedom of association under Article 11 of the European Convention on Human Rights (Article 11) was breached by section 146 TULRCA 1992 because Mrs Mercer had no protection from detriment for taking part in a strike. However, it decided that it couldn’t interpret s146 TULRCA in a way that was compatible with that right.
The matter went to the Employment Appeal Tribunal (EAT) which decided that section 146 TULRCA 1992 could be interpreted compatibly with Article 11. But in order to do so, additional words had to be added into section 146, so that industrial action was a trade union activity undertaken at an appropriate time.
The Secretary of State then became involved, as intervener, and raised an appeal to the Court of Appeal (CoA). The CoA held that the failure to give employees legislative protection against any sanction short of dismissal for taking official industrial action might put the UK in breach of Article 11. However, it said an attempt to interpret section 146 compatibly with Article 11 would result in impermissible judicial legislation i.e. the Court would be overstepping its boundaries in that it was for Parliament and the executive to legislate, not the Courts, with it’s role to interpret legislation.
The CoA had the option to grant a declaration that section 146 was incompatible with Article 11. The CoA chose not to, considering, amongst other things, that rather than there being any specific statutory provision that was incompatible with Article 11, the lack of protection was derived from a gap in the law.
The matter then ended up in the Supreme Court, who have made a declaration that section 146 is indeed incompatible with Article 11, insofar as it fails to provide any protection against sanctions short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.
This is a very positive outcome and one which will hopefully force the government to change the legislation in favour of employees. The purpose of a declaration of incompatibility is to draw the attention of Parliament and the executive to an incompatibility that cannot be remedied by the Courts. Until and unless national law is changed, section 146 TULRCA 1992 remains unchanged and doesn’t provide the necessary protection. However, if Parliament does not respond to the declaration of incompatibility by amending the legislation, Mrs Mercer is able to take the matter directly to the European Court of Human Rights (ECtHR).
Author: Tony Rippon, employment.
