The conventional interpretation of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) has been that it provides no protection for those subjected to a detriment (disadvantage) for taking industrial action. In Mercer v Alternative Future Group Ltd, the Employment Appeal Tribunal (EAT) has moved decisively away from that position.

Basic facts

Ms Mercer, who was employed as a support worker, was also a workplace representative for Unison. In early 2019, there was a trade dispute with regard to payments for sleep-in shifts. Ms Mercer was involved in planning and organising a series of strikes between March and May 2019 which included giving media interviews. In these interviews, she made it clear that she intended to take part in the strike action. 
On 26 March, Ms Mercer was suspended. She was told this was because she had abandoned her shift (to take part in the strike without authorisation) and had spoken to the press without permission. The suspension was lifted on 11 April, but Ms Mercer was given a first written warning a couple of weeks later for leaving her shift, a sanction that was overturned on appeal. 
On 23 August, Ms Mercer lodged a tribunal claim asserting that she had been subjected to a detriment by virtue of being suspended, contrary to section 146 of TULRCA. She contended that the sole or main purpose of the suspension was to prevent or deter her from participating in the activities of an independent trade union or to penalise her for doing so. Her case was that the “activities of an independent trade union” within the meaning of section 146 included both the planning and organisation of the industrial action and her own participation in it.
One of the arguments the employer made in response to her claim was that taking part in industrial action could not be an activity protected by section 146. A preliminary hearing was held to consider the issue on 8 April 2020. 

Tribunal decision

The tribunal concluded that although, as a matter of ordinary language, participation in industrial action was part of the activities of a trade union, the proper interpretation of section 146 in light of the existing domestic authorities was that it did not extend to include any form of industrial action.

The tribunal also considered whether article 11 of the European Convention on Human Rights (freedom of assembly and association) offered protection to those subject to a detriment for the purposes of penalising or deterring them from engaging in lawful industrial action. Although it found that section 146 as previously interpreted by the domestic courts failed to provide protection in respect of industrial action -which was part of the rights guaranteed by article 11 - it was not possible to interpret it in a way that would. Nor did it have jurisdiction to deal with the issue of whether a formal declaration of incompatibility should be made under section 4 of the Human Rights Act.

EAT decision

Agreeing in part with the tribunal, the EAT held that it was clear from European case law that any restriction on the right to participate in a trade union-sanctioned protest or strike action amounted to interference with the rights afforded under article 11 and that this interference could not be justified.  It therefore followed that failure to provide protection against action short of dismissal for participating in strike action amounted to a violation of Ms Mercer’s article 11 rights. 

The EAT then went on to consider whether it could read or give effect to section 146 TULRCA so that it was compatible with article 11 and concluded that this was possible. The conventional approach by domestic courts to section 146 has been that it only protects trade union activities that take place at an “appropriate time” and that strike action falls outside that. However, the EAT agreed with a submission that a new provision could be added to the definition of an “appropriate time” so as to override this and make clear that a worker participating in industrial action within working hours is doing so at an “appropriate time”. It was, in the view of the EAT, not going against the grain of the legislation to adopt an interpretation of this nature and the tribunal erred in concluding otherwise. 


This is a very significant judgment and reverses the way in which section 146 has always been interpreted. The case provides a basis for workers to be protected from being subjected to a detriment as a consequence of taking lawful industrial action, a right that is clearly afforded to them through article 11.