In the recent judgement of Mercer v Alternative Fuel Group, the Supreme Court has ruled that Section 146 Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA) is incompatible with Article 11 of the European Convention on Human Rights (ECHR).
Section 146 of TULRCA provides that a worker has the right not to be subjected to any detriment, short of dismissal, by their employer if the sole or main purpose is to prevent or deter them from taking part in trade union activities, or to penalise them from doing so. However, this protection only applies if those activities take place at an ‘appropriate time’. An ‘appropriate time’, is defined as being at a time outside working hours or within working hours but with the employer’s consent. By its nature, industrial action generally takes place during a worker’s hours to be effective and it would arguably place an inordinate level of power on an employer to withhold consent to any action they are unlikely to agree with.
It should be noted that there are protections where the employer dismisses staff in relation to strike action.
In the case of Mercer, the Claimant was a UNISON workplace representative and an employee of the Respondent. The Respondent suspended her on basic pay (resulting in a loss of overtime pay) and gave her a written warning after she was involved in planning and taking part in lawful strike action.
The Supreme Court ruled that Section 146 TULRCA did not provide protection for workers for detriment short of dismissal for taking part in or organising industrial action because the protection was limited to industrial action outside of working hours. They held that this lack of protection encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of the ECHR. This meant that UK law was incompatible with the ECHR, and the Supreme Court exercised its discretion to issue a declaration of incompatibility.
In accordance with section 4(6) of the Human Rights Act 1998, a declaration of incompatibility does not affect the law’s validity and therefore it remains in full force and effect. It will now be down to Parliament to consider whether amendments are necessary to bring UK Law in line with the ECHR.
Given the current political climate and in particular, the swathe of prior promises made by the Labour party as it pertains to changes to be implemented to employment law (as well as historic support for union rights) it will be of particular note to employment lawyers the potential impact that the outcome of the general election will have on this matter.
Written by Maya Batcheller, Trainee Solicitor
