Withholding benefits allowed for employees on strike

Employees who are taking part in official strike action organised by a recognised trade union are protected against dismissal. This means an employer cannot sack someone who decides to go on strike. However, the Court of Appeal recently considered whether it was lawful for such employees to be subject to actions short of dismissal, commonly known as suffering a detriment.

The detriment in this case, Mercer v Alternative Futures Group & Another, was related to an employee being suspended and subsequently missing out on overtime pay. Mercer had worked for the respondent as a support worker since 2009 and was also a workplace representative for trade union UNISON. In 2019, there was a trade dispute regarding sleep-in shifts which led to a series of lawful strikes between March and May. In her capacity as a UNISON rep, Mercer was involved with the organisation of and participation in the strikes. As a result, she was interviewed by an online news publication and was included in press material for the Liverpool Echo.

In March 2019, Mercer was placed on suspension following allegations that she had abandoned her shift twice to engage in union-related activities, and for speaking to the press without prior authorisation; the respondent outlined that she had revealed sensitive information which could have brought them into disrepute. Whilst suspended, Mercer was unable to earn her usual overtime pay, as she was only given her basic salary.

In April 2019, the employee returned to work. However, she raised a claim to the employment tribunal (ET) for suffering an unlawful detriment due to participation in industrial action, under s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The ET dismissed the claim on the basis that the activities protected under TULRCA did not include preparing for or taking part in strike action. Mercer appealed this decision to the Employment Appeal Tribunal (EAT).

The EAT upheld her claim, on the basis that TULRCA was incompatible with the Human Rights Act 1998, which protects the right to freedom of peaceful assembly, including the right to form and join trade unions. At this point, the Government Department for Business, Energy and Industrial Strategy (BEIS) intervened and lodged an appeal with the Court of Appeal (CoA).

The CoA overturned the decision made by the EAT saying that whilst it may be that some domestic legislation is incompatible with the European Convention on Human Rights (EHRC), this is not a reason to change it. The CoA held that the EHRC does not give legislative protection against every form of detriment in response to industrial action. As such, protection against action short of dismissal is only available where it is in relation to trade union activities, and not in taking industrial action itself.

The judgement means employers can take action short of dismissal, such as depriving staff of non-contractual benefits, if they participate in industrial action. Therefore, employers may be more likely to deter staff from participating in a strike by removing discretionary bonuses, for example. Whilst doing so will be lawful, employers should consider the wider impact it will have on employee relations and the organisation’s reputation.

UNISON has indicated that it plans to appeal the CoA decision, to the UK Supreme Court, so employers should be careful when considering any action and prepare for further changes to legal requirements in this area.

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