Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) a worker has the right not to be subjected to a detriment for “taking part in the activities of an independent trade union at an appropriate time”. The Court of Appeal has held in Mercer v Alternative Future Group Ltd that this provision did not protect a worker subjected to a disadvantage as a consequence of participating in industrial action.
Ms Mercer, a support worker and a workplace representative for Unison, was involved in planning and organising a series of strikes about payments for sleep-in shifts. She was suspended on the basis of allegations that she had abandoned her shift twice without permission and had spoken to the press twice without authorisation.
Ms Mercer lodged a tribunal claim under section 146 TULRCA, arguing that she had been subject to a detriment (or disadvantage) as a result of being suspended and her employer’s sole or main purpose was to prevent her from taking part in the activities of a trade union at an appropriate time. That is, that she was involved in both planning and taking part in industrial action.
Her employer argued, firstly, that the decision to suspend her and take disciplinary proceedings against her were unrelated to trade union activities; and secondly, that domestic law was clear that taking part in industrial action could not be an activity protected by section 146. It was agreed a preliminary hearing would be convened to consider the second point.
Tribunal and EAT decisions
The tribunal judge concluded that, according to domestic authorities, participating in strike action was not participating in a trade union activity at an appropriate time although European Court of Human Rights case law stressed that this was an infringement of Article 11 (freedom of association).
The judge, therefore, considered whether he could use his interpretative obligation to read section 146 in such a way as to be compatible with Article 11, recognising that this would involve having to insert additional wording into the legislation. He decided, however, that it was impossible to do this as TULRCA drew a clear distinction between trade union activities and the protection provided to workers for participating in them, which are governed by Part III of the Act. Industrial action (and the much more limited protection from dismissal only), on the other hand, was governed by Part V. Including industrial action as a trade union activity under Part III would, therefore, be inconsistent with a fundamental feature of the legislation.
The EAT (weekly LELR 729) overturned the tribunal decision in a bold and progressive judgment. This concluded that it was possible to construe section 146 in accordance with Article 11 by amending the definition of “appropriate time” to include all time within working hours when a worker is taking part in industrial action, as opposed to only something done in a worker’s own time or where the worker has express consent from the employer to do the activity. It held that construing section 146 in the conventional way violated Article 11.
Decision of Court of Appeal
The Court of Appeal unfortunately has now reversed that decision. It agreed with the tribunal that the structure of TULRCA indicated an intention on the part of parliament to exclude strike action from any protection afforded under Part III of the Act. It also did not accept that any detriment for participating in strike action was incompatible with Article 11. It did, however, accept the failure to give any legislative protection for any sanction imposed on a worker short of dismissal for participating in strike action may put the UK in breach of Article 11.
As a consequence, the Court of Appeal went on to consider whether that could be resolved by reinterpreting section 146 by means of “reading down” the provision (essentially inserting words into the legislation as the EAT had done). It concluded it was not possible to do this because whatever approach it adopted gave rise to a number of what it described as “policy questions”. The court concluded those sorts of questions were best left to parliament and any attempt to add an additional sub-clause to section 146 as the EAT had done “would result in impermissible judicial intervention“.
The judgment overall is very disappointing. However, Unison has already indicated it will seek leave to appeal. Furthermore, the Court of Appeal did expressly recognise that the failure to provide workers with any protection against a sanction short of dismissal for official industrial action may put the UK in breach of Article 11. This is a point which has been made repeatedly by trade unions and those that represent them. Whilst no declaration of incompatibility between domestic legislation and Article 11 was made in the Court of Appeal, it will not be the end of the matter.