UK trade union law in breach of human rights

There has been yet another significant case decided by the Supreme Court in the world of Trade Union law, this time in favour of Trade Unions and employees.

Background

Trade Union law provides various protections for employees taking part in industrial action or other trade union activities, including an absolute ban on employers dismissing staff for participating in protected Industrial Action.

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘section 146’) does provide protection for employees from being subjected to a detriment for taking part in trade union activities if those activities take place at an “appropriate time”. However, “appropriate time” is defined as taking place “outside working hours or during working hours with the employer’s consent”.

The wording of section 146 presents a problem for those employees organising or participating in industrial action during working hours, which is invariably the case as that is the whole point of industrial action i.e. to refuse to work or restrict duties whilst working, and it is highly unlikely an employer would consent to such action.

Given the wording of section146, employees find themselves in a position where they are not protected from a detriment i.e. action short of dismissal.

Mercer v Alternative Fuel Group

The case of Mercer v Alternative Fuel Group has made its way to the Supreme Court and the decision was handed down this week, confirming that UK law is incompatible with Article 11 of the European Convention on Human Rights (‘the Convention’) (right to freedom of assembly and association).  

In this case the Claimant was a UNISON workplace representative and an employee of Alternative Fuel Group. She was suspended on basic pay (resulting in a loss of overtime pay) by her employer and issued a written warning after she was involved in planning and taking part in lawful strike action which was during working hours.

Supported by her Union, she brought a claim under section 146claiming detriment short of dismissal for organising and participating in strike action, despite the section not expressly covering trade union activities during working hours.

The Employment Tribunal found against the Claimant but noted they believed section 146 was a breach of Article 11. The Employment Appeal Tribunal agreed with the Tribunal that section 146 was in breach of Article 11, but concluded that it could read into the relevant legislation (s.146) that there was protection from detriment for taking part in industrial action to make it compatible with Article 11.

At this stage, the government intervened in the case and appealed to the Court of Appeal. The Court of Appeal permitted the government’s appeal concluding that UK law does not prevent employers taking action short of dismissal against those who participate in industrial action. Whilst it accepted it could be a breach of Article 11, it didn’t agree that it was permissible to read the current legislation to give protection to employees from suffering a detriment and that it is for parliament to amend the legislation if it is incompatible.

The decision was understandably appealed and the Supreme Court held:

• Section 146did not provide protection for detriment short of dismissal for taking part in or organising industrial action, because it only covered industrial action outside of working hours. As such, the Claimant could not bring her claim under section 146.
• This lack of protection encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of the Convention.
• It wasn’t possible to interpret section 146 in a way which was compatible with Article 11.
• This meant that UK law was incompatible with Article 11.

The Supreme Court exercised its discretion to issue a declaration of incompatibility, holding that ‘section 146 is incompatible with article 11 of the Convention’.

What next?

It is now down to Parliament to consider legislative amendments to bring the UK into line in this area. 

If you require any advice in relation to the above, please contact a member of our Trade Union team.