Reversing a significant decision by the Employment Appeals Tribunal (EAT), the Court of Appeal in Mercer v Alternative Future Group has confirmed that workers are not protected against detriments imposed by employers in response to industrial action. An example of this might be taking disciplinary action against employees for leaving a shift to take part in a strike.
This represents a significant reversal of the EAT’s decision and is particularly relevant where an employer contemplates taking action against those on strike, other than deducting pay for work not done during the strike. It has been reported that the trade union involved will lodge an appeal application.
Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects workers from suffering detriment as a result of having taken part in the activities of an independent trade union. Until recently, most commentators have interpreted that this protection does not extend to those who go on strike. Effectively, this has meant that employers are able to take formal action against employees who go on strike. As long as the action taken against them falls short of dismissal, which is prohibited, this might include suspending employees, docking their pay, or giving them formal warnings.
A series of EAT decisions in Mercer v Alternative Future Group and Ryanair DAC v Morais briefly changed this position. In both cases, the EAT decided that section 146 needed to be interpreted so as to give striking workers protection from suffering detriment. Part of the reasoning given in the EAT’s decision in Mercer v Alternative Future Group was that not giving workers such protection was effectively a breach of Article 11 of the European Convention on Human Rights (the right to form and join trade unions) and that section 146 therefore needed to be read in a way that was compatible with Article 11. After the EAT’s decision in Mercer v Alternative Future Group went to the Court of Appeal, the EAT’s decision in Ryanair DAC v Morais, also went to the Court of Appeal. This is significant as the decision in the case involving Ryanair DAC v Morais was heavily reliant on the EAT’s decision in Mercer v Alternative Future Group. We can therefore expect the decision in Ryanair DAC v Morais to be overturned as well.
Although the Court of Appeal appeared to call on the UK Government to address this gap in protection for striking workers through legislative action, the fact that the Secretary of State sought permission to appeal the EAT’s decision in Mercer v Alternative Future Group and put forward the argument that section 146 was compatible with Article 11 makes this seem an unlikely prospect.
If the legal position is to change and striking workers are to be afforded protection from suffering detriment, it is now most likely to come as a result of an appeal to the Supreme Court or further action in the European Court of Human Rights.
Feel free to contact our solicitors if you need further information or legal advice relating to the rights of workers who participate in strike action.
John McConkey has over 8 years of experience in employment law. John also has extensive experience of employment disputes and has acted for many individuals and employers. John is a registered member of The Law Society and The Employment Lawyers Association (ELA UK). To contact John, visit the Contact Us page. For media enquiries: info@dphlegal.com