Lack of protection against detriment for taking part in industrial action breaches human rights
The Supreme Court has confirmed that the lack of statutory protection against detriment for participating in industrial action breaches the right of freedom of assembly under article 11 European Convention on Human Rights (ECHR).
Background
In the case of Secretary of State for Business and Trade v Mercer, Mrs Mercer was employed as a support worker by AFG and was a workplace representative for the trade union UNISON. She was involved in planning strike action. She gave media interviews about the strikes and participated in the strikes herself.
She was then suspended from work and was told the reason for her suspension was for abandoning her shift and speaking to the press. Ultimately her suspension was lifted but she was taken through a disciplinary procedure. She brought a claim under section 146 Trade Union and Labour Relations Act 1992 (TULRCA), which says that it is unlawful for an employer to subject a worker to detriment for taking part in trade union activities.
The statutory framework
The case highlights a gap in the statutory protection afforded to individuals who take part in industrial action. Currently under TULRCA, the workers are protected from:
- Detriment and dismissal for participating in trade union activities
- Dismissal only, for participating in industrial action
Crucially, TULRCA does not protect workers against detriment (short of dismissal) for taking part in industrial action. Mrs Mercer therefore argued that her actions in planning the industrial action and participating in it fell within the scope of what was meant by 'trade union activities'.
Litigation
The case has progressed from the Tribunal, to the Employment Appeal Tribunal to the Court of Appeal, and now the Supreme Court. At the Court of Appeal stage, the Court held that the protection provided under section 146 does not protect workers from detriment for taking part in industrial action. The Court found that the rules protecting workers who take part in industrial action are found elsewhere in TULRCA. This protection does not include protection against detriment for participating in industrial action. The Supreme Court agreed with the Court of Appeal's findings in this respect.
Declaration of incompatibility with human rights
The other aspect of the claim concerned the question of whether the lack of protection against detriment for taking part in trade union activities was incompatible with article 11 of the ECHR (freedom of association), and if so, whether a "declaration of incompatibility" should be issued. The purpose of a declaration of incompatibility is to draw Parliament's attention to an incompatibility that cannot be remedied by the courts. A declaration of incompatibility does not affect the validity, continuing operation of enforcement of the legislation it concerns. It also does not bind the parties to the litigation, and it requires no specific action from Parliament. However, if Parliament fails to address the incompatibility, the claimant can continue to pursue their human rights in the European Court of Human Rights.
Supreme Court disagreed with Court of Appeal's reasoning
The Court of Appeal declined to issue a declaration of incompatibility with respect to the gap in TULRCA protection and the article 11 right to freedom of assembly. It considered it was not possible to issue a declaration of incompatibility where there is a gap in the law, and that such declarations can only be issued where there are two contradictory statutory provisions.
The Supreme Court did not agree with the Court of Appeal's reasoning on this point. Section 146 has the implicit effect of legitimising sanctions short of dismissal imposed for participation in lawful trade union activities. This puts the United Kingdom in breach of article 11 and means that a declaration of incompatibility can be issued.
What happens next?
As the Supreme Court has now issued a declaration of incompatibility in respect of article 11 rights, Parliament's attention is likely to be drawn to this gap in the law. The question of how Parliament will respond remains to be seen.
We will continue to report on developments.