Employees have long had protection from being dismissed for taking part in industrial action. When it comes to action short of dismissal, however, the law is different.

Employers are prohibited from subjecting an employee to detrimental treatment for taking part in trade union activities, but only if those activities take place at “an appropriate time”. This rule is set out in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

An “appropriate time” means outside of the employee’s working hours, or within working hours with the employer’s consent. It would be very unusual for an employer to consent to industrial action, which by its nature must generally take place during an employee’s working hours to be effective. The upshot is that, until the dispute in this case, employees had not enjoyed protection from detriment short of dismissal for taking part in industrial action.

What happened in this case?

Mrs Mercer was a support worker at a social care charity and, at the relevant time, was a workplace representative for her trade union (Unison). In early 2019, there was a trade dispute over payments for sleep-in shifts and Unison called a series of strikes. Mrs Mercer was involved in planning and organising the industrial action, as well as in taking part in it. In response, she was suspended. This generated a dispute about whether, as a matter of principle, being suspended for taking part in industrial action could amount to an unlawful detriment under section 146 of TULRCA.

The Employment Appeal Tribunal (EAT) decided last June that TULRCA’s failure to provide proper protection against steps short of dismissal for employees who take industrial action was a breach of their rights to freedom of association under Article 11 of the European Convention on Human Rights (ECHR). Critically, the EAT also decided that it could use its powers under the Human Rights Act 1998 to read extra words into section 146 to remedy this situation. It said that “appropriate time” should be read as including “a time within working hours when [a worker] is taking part in industrial action”.

What has the Court of Appeal decided?

The Court of Appeal (CA) agreed with the EAT that, in principle, TULRCA’s failure to provide full protection against steps short of dismissal for employees who take industrial action may amount to a breach of their human rights. The CA concluded, however, that the EAT’s reading new words into the definition of an “appropriate time” amounted to an impermissible rewriting of TULRCA. It was also far from clear how the legislation should be read in light of questions such as whether it should cover all industrial action or only official industrial action, and whether it should continue to apply indefinitely or be time limited in the same way as protections against dismissal are limited to twelve weeks. Only Parliament can determine such sensitive matters.

Implications for employers

This judgment will lead to some relief for employers facing strike action. The EAT’s decision had severely restricted an employer’s ability to respond to the threat of industrial action, other than by deducting pay for its duration. Employers may now once again carefully consider taking other action short of dismissal on the basis that there is no standalone claim against them for this under UK employment law.

Employers should nevertheless note that the CA has agreed with both the Employment Tribunal and the EAT that the current level of protection for employees is unsatisfactory and potentially breaches their human rights under the ECHR. Against this backdrop, employers remain at risk of future legal claims if they respond to industrial action by taking steps falling short of dismissing participants, even if only because, in order to seek redress for a breach of their ECHR rights from the European Court of Human Rights, they must first unsuccessfully complain to an Employment Tribunal and exhaust all rights of appeal open to them through the UK courts.

Employers should also note that the CA will consider similar issues later this year when it hears an appeal against the EAT’s decision in Ryanair DAC v Morais and others (see our article here for more details). It is also likely that Unison, the trade union behind this case, will seek permission to appeal to the Supreme Court. As such, it seems highly unlikely that the CA’s decision will mark the end of the debate on this important issue.

Mercer v Alternative Future Group Limited – judgment available here.