The case of Secretary of State for Business and Trade v Mercer concerns whether section 146 of TULR(C)A provides protection for workers from detriment for participating in lawful strike action. The right to strike is protected under Article 11 of the ECHR, the right to freedom of association and assembly.
What does section 146 TULR(C)A say?
Section 146 provides a worker with the right not to be subjected to any detriment by any act (or failure to act) by their employer if the reason for the employer's behaviour is solely or mainly to prevent or deter the worker from taking part in the activities of an independent trade union at an appropriate time or penalising the worker for doing so. Of relevance to the Mercer case is the issue of what "appropriate time" means. It is defined in the legislation as being a time outside the worker's working hours or a time within working hours that it is permissible for the worker, with the agreement or consent of the employer, to take part in trade union activities. Also of relevance is that section 146 falls within Part III of the TULR(C)A which deals with trade union activities. This is distinct from Part V of TULR(C)A which deals with industrial action.
The Mercer case
The claimant in this case brought an employment tribunal claim under section 146 of TULR(C)A. She was a workplace representative for UNISON and had been involved in planning and organising a series of strikes in 2019. She had given some media interviews about them and indicated that she intended to participate in the strikes. She was subsequently suspended on basic pay (losing overtime pay) and given a written warning. In her claim to the tribunal, she argued that the planning and participation in the strike was an activity of a trade union that triggered the protection from detriment provided by section 146.
An employment judge found that taking part in industrial action was not one of the activities protected by section 146. Given that industrial action is dealt with separately under Part V of TULR(C)A, to read down (i.e. for the Employment Tribunal to add additional words to the existing legislation) so as to extend the applicability of section 146, in Part III, to include industrial action would "go against the grain" of the legislation. This effectively left the claimant with no statutory remedy. It also rendered it impossible to read section 146 in a way that was compatible with Article 11 ECHR.
The claimant appealed to the EAT at which stage the Secretary of State intervened in the proceedings. The EAT allowed the appeal, holding that additional wording could be inserted, making it possible to construe section 146 in accordance with the ECHR and giving the claimant a remedy. However, that judgment was overturned by the Court of Appeal, albeit the Court did not go so far as to issue a declaration of incompatibility with the ECHR, which is something that Courts have the power to do under section 4 of the Human Rights Act 1998. The Court felt this was inappropriate because "the extent of the incompatibility is unclear, and the legislative choices are far from being binary questions". The Claimant appealed to the Supreme Court.
The Supreme Court judgment
The Supreme Court agreed with the Court of Appeal that section 146 does not protect workers participating in lawful strike action from detriment short of dismissal. The judgment said that "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." It also agreed with the Court of Appeal that to read down section 146 would amount to "impermissible judicial legislation rather than interpretation". It is far from obvious what the nature, scope and structure of the requisite protection should be, and other policy choices will need to be made by Parliament if it decides to introduce legislative protection. However, the Supreme Court allowed the Claimant's appeal against the Court of Appeal's refusal to make a declaration of incompatibility with the ECHR.
What effect does a declaration of incompatibility have?
In fact, such a declaration has limited practical effect. It is a discretionary power of the courts, the purpose of which is to draw the attention of Parliament to an incompatibility that cannot be remedied by the courts. It does not affect the validity, continuing operation, or enforcement of the legislation it concerns and nor is it binding on the parties to the proceedings. It requires no action from the executive or Parliament, albeit, if nothing is done, the matter can continue to be pursued by the claimant to the European Court of Justice in Strasbourg.
Implications of the judgement
Even through there is currently no protection for subjecting workers to detriment short of dismissal for taking part in lawful strike action, employers will still want to avoid doing so. While there may currently be no legal sanctions, the judgment brings with it an increased risk of damage to both industrial relations and reputation.
Although there is no obligation on Parliament to take action to change the law, new legislation does often follow the making of declarations of incompatibility. However, given that no legislation in this particular area is pending and there is limited Parliamentary time available before the next General Election, it will fall to the next UK Government to decide on what action, if any, to take in response. In the meantime, section 146 will continue to have force and effect, notwithstanding its incompatibility with Convention rights.
