Scrase Law Employment Solicitors

Does an employee have protection from being subjected to a detriment for taking part in strike action?

Employees are protected from being dismissed for taking part in lawful strike action.  Employees are also protected from being subjected to a detriment if the reason is to prevent or deter the employee from taking part in the activities of an independent trade union at an appropriate time.  This protection is set out in section 146 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).  However, whether taking part in lawful strike action is included within the meaning of union activities has been the subject of a long running claim.

Background

Ms M was involved in planning and taking part in lawful strike action at her workplace.  She also took part in media interviews.  She was suspended by her employer and told this was because she had abandoned her shift without permission and spoken to the press about the strike without authorisation.  She was also subjected to disciplinary action.  She was given a first written warning for leaving her shift, although that decision was overturned after she appealed.  She issued a grievance, which was rejected by her employer.

The claim

Ms M issued a claim in the Employment Tribunal that suspending her was a detriment and that the purpose of the suspension was to prevent or deter her from taking part in trade union activities or to penalise her for having done so.  She argued that trade union ‘activities’ included planning, organising and taking part in the strike action.

Further details of the claim, and its progress through the Tribunal system are set out in our separate post here.  The Tribunal held that S146  does not give protection to employees for taking part in strike action.  The Employment Appeal disagreed.  On appeal, the Court of Appeal interpreted section 146 as not providing protection from detriment (short of dismissal) for taking part in strike action.   It found that strike action is not included within the meaning of union activities.  The Court of Appeal went on to say that this may put the UK in breach of article 11 of the European Convention of Human Rights (ECHR), and that this was a policy issue best left for Parliament to resolve.

Is the employee protected from detriment?

The Supreme Court has now considered the issue.  Ms M argued that all detriments imposed by an employer on an employee, to deter or penalise their participation in lawful industrial action, are incompatible with article 11 ECHR and must be prohibited.  Article 11 protects the right to strike. 

The Supreme Court found that the failure to provide protection against any sanction short of dismissal for taking part in lawful industrial action puts the UK in breach of its obligation to ‘secure effective enjoyment of the right to participate in a lawful strike that is protected by article 11’.   The right of an employer to impose any sanction at all short of dismissal for participation in lawful industrial action nullifies the right to take lawful strike action.  ‘If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves.’ It also found that it is not possible to interpret section 146 in a way compatible with article 11 ECHR.   However, it is for Parliament to decide whether to legislate on this issue and, if so, the scope and nature of protection required to give effect to the rights protected by article 11.  

The Court therefore made a declaration that ‘section 146 is incompatible with article 11, as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union’.

Comment

It is now for the Government to decide whether to introduce legislation to provide employees with protection from detriment for taking part in lawful strike action. 

Secretary of State for Business and Trade v Mercer

19 April 2024

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