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.
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.