EAT: employees cannot face detriment for industrial action

An employment appeal tribunal (EAT) has held that employees cannot face a detriment for taking part in industrial action, even if the detriment is not dismissal.

The claimant in F Mercer v Alternative Futures Group Ltd and Others, Mrs Mercer, worked as a support worker for Alternative Future Group (AFG), one of the respondents.  Mrs Mercer was part of the trade union Unison and was a workplace representative for the union. In March 2019, due to AFG’s plans to cut its sleep-in workers’ pay, Unison planned a number of strikes.

Mrs Mercer was suspended on 26 March 2019 for planning and taking part in a strike. She also received a written warning for leaving her shift early; but the suspension was later lifted, and the sanction was overturned after an appeal.

On 23 August 2019, Mrs Mercer applied to an employment tribunal (ET), claiming that she had faced a detriment by being suspended and that AFG had done so to prevent her planning and organising industrial action. She cited section 146 of TULRCA, further arguing that the “activities of an independent trade union” outlined in TULRCA includes not only the planning and organisation of industrial action but also participating in it.

The ET took the European Convention on Human Rights (ECHR) into account in its decision, namely Articles 10 (freedom of expression) and 11 (freedom of assembly and association). The ET considered whether, with the Articles in mind, section 146 of TULRCA can extend to participating in industrial action.

It was ultimately held that whilst participating in industrial action does form part of the activities conducted by trade unions, the proper interpretation of section 146 means that it cannot be extended to participation.

The ET went on to say that Mrs Mercer cannot pursue a claim that section 146 was breached “if the sole or main purpose was to prevent or deter her from actually participating in that industrial action.” She can, however, still pursue her case under section 146 on the basis that the “sole or main purpose of the suspension was to prevent or deter her from taking part in the planning and organisation of industrial action”.

Mrs Mercer appealed to the EAT.

The EAT allowed the appeal, taking into account section 3 of the Human Rights Act 1998 which states that, where possible, “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the ECHR.”

The EAT pointed out that “any restriction on the right to strike, however minor, may be found to amount to an infringement of Article 11 of ECHR.” On that point, the EAT held that there are no provisions within TULRCA to suggest that workers are not, and should not be, protected from detriment for participating in industrial action.

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