In the case of Mercer v Alternative Future Group Ltd, Fiona Mercer was employed as a support worker by Alternative Future Group, a health and social care charity.
At the relevant time, she was a workplace representative for her trade union, Unison. In early 2019, there was a trade dispute in respect of payments for sleep-in shifts. Unison called a series of strikes which took place. The Claimant was involved in planning and organising those strikes. She took part in some media interviews.
On 26 March 2019, Mercer was suspended. She was told that this was because she had abandoned her shift (presumably to take part in the strike) on two occasions without permission and that she had spoken to the press without prior authorisation.
Mercer presented a claim to the Tribunal, complaining that, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), she had been subjected to a detriment by being suspended to prevent her from participating in trade union activities.
The EAT held that the ET was correct to conclude that there was an infringement of Article 11 but wrong to find that it was not possible to read or give effect to section 146 so as to be compatible. Accordingly, the appeal succeeded, and section 146 was to be read as encompassing participation in industrial action.
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