Supreme Court rules lack of protection for striking workers breaches human rights

Are workers protected against sanctions short of dismissal for taking part in strike action, and if not, is that compatible with workers’ human rights? No on both counts, held the Supreme Court in a landmark ruling in Secretary of State for Business and Trade v Mercer (Mercer). This blog examines this decision and its implications.

An overview of the law on strike action

A strike is defined by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) as “any concerted stoppage of work”.

The right to strike is recognised as a fundamental right and protected as such under Article 11 of the European Convention on Human Rights (the freedom of assembly and association).

In the UK, the key statutory provisions on the law on industrial action are set out in TULRCA. This does not give workers a specific ‘right to strike’ (doing so will be in breach of a worker’s contract of employment) however, it does provide trade unions and workers with certain immunities for taking part in strike action, provided that prescribed statutory conditions are met. In particular, under TULRCA workers are protected in certain circumstances from being dismissed for taking part in lawful strike action.

In contrast, while section 146 TULRCA protects workers from detriment on grounds related to union membership or activities, taking part in industrial action has been held not to be one of the "activities" protected by this. As a result, UK law contains no express protection for workers against detriment short of dismissal by their employer for taking part in lawful strike action. This might include suspension, disciplinary sanctions or removing non-contractual benefits.

The question before the courts in Mercer was whether section 146 TULRCA could be interpreted to provide such protection in a way which is compatible with Article 11 ECHR, and if not, the consequence of that. 

Background

Mrs Mercer was a workplace representative for the trade union UNISON and planned and participated in lawful strike action. She was subsequently suspended, during which time she received normal pay but was unable to earn overtime pay.

Mrs Mercer brought a claim against her employer under section 146 TULRCA, alleging that she had suffered detrimental treatment for the sole or main purpose of preventing or deterring her from taking part in trade union activities.

Mrs Mercer’s case worked its way through the courts, and at the Court of Appeal stage the Government took over from her employer as the opposing party in the case. The Court of Appeal upheld the Employment Tribunal decision that it was not possible to interpret section 146 compatibly with Article 11 but refused to make a declaration of incompatibility to that effect. Mrs Mercer appealed to the Supreme Court. 

The Supreme Court’s decision

The Supreme Court considered the following questions and concluded as follows:

1. Protection required by Article 11
   
   

The Supreme Court recognised that the right to strike is protected by Article 11. However, it also acknowledged that the right to strike is not an absolute right. The UK is not required to provide universal protection to workers against any detriment, but a fair balance must be struck between the interests of employers and workers, and any restriction of Article 11 rights must be justified.

2. Construction and interpretation of section 146
   
   

Section 146 protects workers against detrimental treatment for taking part in the activities of a trade union “at an appropriate time”, defined as excluding working time, except with the employer’s consent. The Supreme Court found that “to have the desired effect”, strike action normally takes place during working hours and without consent, and as such it will not be covered by section 146.

The Supreme Court had to consider whether it is possible to interpret section 146 in a way which is compatible with Article 11, using its powers under the Human Rights Act 1998. However, these powers do not allow a court to change the substance of a provision. The Court concluded that any other reading of section 146 would have “potentially far-reaching practical ramifications” and contradict a fundamental feature of TULRCA. Given this, section 146 could not be interpreted or re-written as providing the protection sought. 

3. Compliance with Article 11
   
   

The Supreme Court was forceful in its finding that a fair balance had not been struck by section 146 and as a result the UK is in breach of its obligations under Article 11. The current UK position does not “provide any real or effective protection in the case of a striking worker faced with a disciplinary sanction for taking part in a lawful strike”. Instead, “section 146 encourages and legitimises unfair and unreasonable conduct by employers”. This “complete absence” of protection “nullifies the right to take lawful strike action”, since employees can only take it if they expose themselves to detrimental treatment. 

4. Declaration of incompatibility
   
   

Under section 4 of the Human Rights Act, if a higher court considers that part of an Act of Parliament is incompatible with human rights, it can make a ‘declaration of incompatibility’ to that effect. The Supreme Court had to decide whether to do so in this case. 

The Court found that section 146 is the only route available to Mrs Mercer to enforce her Article 11 rights, but that “this route is blocked by the conventional interpretation given to section 146”.

In light of its findings above, the Supreme Court made a declaration that section 146 TULRCA is incompatible with Article 11.

Implications of the decision

This is a significant decision, understood to be the first time a court has made a declaration of incompatibility in the field of employment/trade union rights since the Human Rights Act 1998 was introduced. The Supreme Court has made it abundantly clear that protection should be offered to trade union members who take part in lawful strike action.

However, a declaration of incompatibility in itself does not affect the validity or continuing operation of section 146. It is now up to the Government and Parliament to decide whether to legislate to change the protection offered by section 146 and, if so, how. Given the timing, it seems probable that nothing will happen until after the general election. However, if Labour wins that election it is likely that the protection of striking workers will form part of its promised reform of trade union legislation.        

For the time being, the underlying law remains unchanged, and section 146 does not protect striking workers from action short of dismissal. Nevertheless, employers are advised to act with caution in their treatment of striking workers or those who are proposing to strike. Not only are detrimental sanctions likely to have a negative impact on industrial relations and carry the risk of reputational damage, this decision makes them increasingly vulnerable to challenge, especially by trade unions who have seized upon this case. 

Employers should also be alive to the risks of claims brought under the Blacklisting Regulations (the Employment Relations Act 1999 (Blacklists) Regulations 2010)). This prohibits the compiling or using of a "prohibited list" containing details of persons who are taking part in trade union activities, if it has been compiled with a view to treating workers less favourably on the grounds of trade union membership or activities. There is a risk that employers imposing sanctions short of dismissal on striking workers will draw up a list in order to do so, and a breach of the Blacklisting Regulations could be another avenue of challenge by such workers pending changes being made to section 146.  

Thank you to Stuart Brittenden KC from Old Square Chambers, part of the team representing Mrs Mercer in the Supreme Court, for providing us with his observations on this case.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2024