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Court of Appeal rules that employers can take action against striking employees short of dismissal

Makbool Javaid, Partner - Simons Muirhead & Burton

The Court of Appeal has ruled that workers taking part in any kind of industrial action are not protected from detriments other than dismissal. Under section 146 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA), workers have the right not to be subjected to a detriment for taking part in trade union activities at an appropriate time.

The issue for the Court of Appeal in Mercer v Alternative Future Group Ltd was whether an individual could bring a claim under TULRCA where the trade union activities in question were industrial action.

Mrs Mercer has been employed by the health and social care charity as a support worker since 2009. 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 between 2 March and 14 May 2019.

Mrs Mercer was involved in planning and organising those strikes. She took part in some media interviews and communicated an intention to participate in the strike action herself. On 26 March 2019, Mrs 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.

The suspension was lifted but the disciplinary action proceeded and she was given a first written warning for leaving her shift. That sanction was overturned on appeal. A subsequent grievance lodged by Mrs Mercer was rejected.

In her complaint to the employment tribunal she alleged the decision had been taken for the sole or main purpose of preventing or deterring her from taking part in trade union activities, or penalising her for having done so.

The employment judge said trade union activities protected by section 146 of TULCRA did not include participation in lawful strike action, and dismissed Mercer’s complaint. However, the EAT disagreed. It said case law from the European Court of Human Rights in Strasbourg showed that any restriction on the right to participate in a trade-union sanctioned strike interfered with an individual’s rights under the ECHR, and therefore section 146 violated human rights law.

The secretary of state for business, energy & industrial strategy, which had intervened at the EAT, appealed that decision and the Court of Appeal upheld the appeal.

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