EAT Confirms Scope of Statutory Protection For Staff Participating in Industrial Action
The Employment Appeal Tribunal (EAT) has held that in the Mercer v Alternative Future Group Ltd the scope of trade union activities under s146 of TULRCA is to be interpreted as encompassing participation in industrial action.
Case Background
Mrs Mercer ("Mercer") was employed at a health and social care charity as a support worker and, at the relevant time, was also a workplace representative for her trade union, Unison. Following a trade dispute in respect of payments for sleep-in shifts, Mercer was involved in planning and organising a series of strikes. She was suspended by her employer for just over two weeks and subjected to a disciplinary process.
Mercer presented a claim to the Employment Tribunal. She complained that she had been subjected to a detriment because of her involvement in the strikes, contrary to section 146 of TULRCA.
What's Does the Trade Union and Labour Relations (Consolidation) Act 1992 Say?
Although section 146 of TULRCA protects workers against detriment related to trade union membership or activities; historically, the meaning of trade union activities has been interpreted as not including industrial action. This is because section 152 of TULRCA, which protects workers against dismissal (rather than detriment) on the grounds of trade union membership or activities, has previously been interpreted as not offering protection against dismissal for participating in industrial action. This is because Part V of TULRCA deals specifically with industrial action and sets out detailed rules about when workers are protected from dismissal for participating in such action, so it was understood that section 152 was not intended to cover such dismissals. Given that the wording about protected activities in sections 146 and 152 is the same, section 146 had previously been interpreted in the same way as section 152, so was viewed as not offering protection against detriment for participating in industrial action.
The Claim
Mercer claimed that, contrary to the historic interpretation, the "activities of an independent trade union" within the meaning of section 146 of TULRCA included both the planning and organisation of industrial action and participation in it.
At first instance, the Employment Tribunal concluded that, although participation in industrial action was part of the activities of a trade union as a matter of ordinary language, the proper interpretation of section 146 of TULRCA was, for the reasons explained above, that it did not extend to any form of industrial action. It went on to find that the failure to protect against such a detriment was an infringement of Article 11 ECHR, which provides a qualified right to freedom of association and assembly, but it concluded that it was not possible to interpret section 146 compatibly with Article 11. This was on the basis that it would go 'against the grain' of the legislation which it held drew a clear distinction between protection for participation in trade union activities and protection for taking industrial action.
Mercer appealed to the EAT. The EAT confirmed that the right to take industrial action is protected by Article 11 ECHR. It also agreed with the Tribunal that the failure to confer protection against detriment for participating in industrial action amounted to an infringement of Article 11. However, it disagreed with the Employment Tribunal's finding that it was not possible to interpret section 146 of TULRCA in a manner compatible with Article 11 ECHR. The EAT highlighted that its obligation under Section 3 of the Human Rights Act 1998 was to construe (so far as it is possible) domestic legislation in accordance with the rights under ECHR. It concluded that there was nothing to suggest that the 'grain' of TULRCA is to exclude protection against detriment for those participating in industrial action and Mercer's appeal therefore succeeded.
What Does This Mean for Employers?
The EAT decision means that section 146 TULRCA will now be read as encompassing participation in industrial action and so will protect employees from any detriment resulting from such activities.
Employers will no doubt already be aware of the protection against dismissal afforded to those who take part in industrial action but, going forward, employers will now also need to be cautious when taking action short of dismissal in response to staff organising, preparing for, or participating in industrial action. Employers should be aware that the term 'detriment' is interpreted very widely and covers not only sanctions, but also comments made, and the withdrawal of opportunities; so this decision greatly increases the scope of protection. Employers do, however, continue to have the right not to pay employees for time spent participating in strike action, but employers should be careful only to deduct the amount that the employee would have earned during the strike; otherwise, they risk a claim not only for unlawful deduction of wages but also under section 146.