Court of Appeal Reverses EAT Decision on Scope of Statutory Protection
In a recent case, the Court of Appeal held there is no current statutory protection under the Trade Union and Labour Relations Act 1992, against detriment for participating in industrial action.
Background
In the case of Mercer v Alternative Future Group, Mrs Mercer was employed by Alternative Future Group (AFG). She was a workplace representative for the trade union Unison, and was involved in planning and organising a series of strikes in 2019. She was subsequently suspended by AFG and disciplined, receiving a first written warning for abandoning her shift.
Mrs Mercer claimed she had been subjected to detriment (suspension and disciplinary action) contrary to section 146 TULRCA for participating in the activities of a trade union. We previously reported on the Employment Appeal Tribunal (EAT) decision in the case, which was subsequently followed in another EAT decision in the case of Ryanair DAC v Morais.
What Are the Relevant Rights Under TULRCA?
There is a complicated background to the Court of Appeal decision, which requires a brief explanation of the relevant rights set out in TULRCA:
- workers are entitled, under section 146 TULRCA, not to be subject to detriment (short of dismissal) for being a member of a trade union or taking part in trade union activities
- a separate section (section 152) protects workers against dismissal for the same reasons
- in the past, both sections 146 and 152 had been held to exclude industrial action from the scope of what is meant by 'trade union activities'. This is because there are separate rules around protection against dismissal for participating in industrial action elsewhere in TULRCA
- crucially, TULRCA contains no such separate rules containing protection against detriment for taking part in trade union activities
If an employer breaches section 146, the Tribunal may award the employee compensation considered just and equitable in the circumstances.
What Did the Court of Appeal Decide?
The Court of Appeal held that section 146 does not protect workers from detriment for taking part in industrial action. This decision reverses the earlier EAT decision and restores the decision of the Employment Tribunal before it.
The Court of Appeal reasoned that the rules concerning the treatment of workers who have taken part in industrial action are set out elsewhere in TULRCA. What is meant by 'trade union activities' for the purposes of section 146 therefore excludes industrial action.
The lack of protection against detriment for participating in industrial action potentially puts the UK in breach of Article 11 of the European Convention on Human Rights (ECHR), which provides a qualified right to freedom of association and assembly.
However, it is not possible to 'read down' section 146 to include protection against detriment for participating in industrial action, in order to plug the gap identified in the protection afforded under TULRCA. To do so would create judicial legislation, which would be impermissible. The Court of Appeal observed the case raises important policy issues which should be left to the Government to determine.
What This Means for Employers
This decision provides clarity on the question of the scope of protection afforded under section 146. However, it should not be interpreted by employers as a licence to subject staff to detriment short of dismissal for participating in industrial action given the Court of Appeal's comments around the breach of Article 11.