Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (17 April 2024)

A union representative was suspended for participating in lawful strike action. The Supreme Court held that section 146 TULRCA, which provides no protection against detriments short of dismissal for lawful strike participation, is incompatible with Article 11 ECHR. A declaration of incompatibility was made.

Facts

Fiona Mercer was employed as a support worker by Alternative Futures Group Ltd (AFG) and served as a UNISON workplace representative. In 2019, she was involved in planning and participated in lawful strike action organised by UNISON concerning the removal of ‘top-up’ payments for sleep-in shifts. She was subsequently suspended by her employer. During suspension, she received normal pay but nothing for overtime she would normally have worked. The case proceeded on assumed facts that the suspension was intended to deter her participation in lawful industrial action.

Procedural History

Ms Mercer complained to an Employment Tribunal under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), alleging she was subjected to detriment for participating in trade union activities. The Employment Tribunal dismissed her complaint, holding section 146 did not extend to participation in industrial action. The Employment Appeal Tribunal reversed this decision, finding a Convention-compliant interpretation was possible. The Court of Appeal allowed the Secretary of State’s appeal, holding that while the UK might be in breach of Article 11, a compliant interpretation was not possible and declined to make a declaration of incompatibility.

Issues

1. Whether Article 11 ECHR protects union members against sanctions intended to dissuade or penalise them for taking part in lawful industrial action organised by their union.

2. Whether section 146 TULRCA can be interpreted compatibly with Article 11 under section 3 of the Human Rights Act 1998.

3. If a compliant interpretation is not possible, whether a declaration of incompatibility should be made under section 4 HRA.

Judgment

Article 11 Protection

Lady Simler, delivering the unanimous judgment, held that while the right to strike is protected by Article 11, it is not a core or essential right. However, the state’s positive obligations under Article 11 require some protection against sanctions short of dismissal for participation in lawful industrial action, even in the private sector.

“the failure to provide any legislative protection at all against any sanction short of dismissal for lawful industrial action against those who take it, does put the United Kingdom in breach of its positive obligation to secure effective enjoyment of the right to participate in a lawful strike that is protected by article 11”

Interpretation under Section 3 HRA

The Court held that a Convention-compliant interpretation of section 146 was not possible. Lady Simler stated:

“to interpret section 146 using section 3 of the HRA in this way, is tantamount to judicial legislation. It fundamentally alters the scope and structure of the rights conferred by TULRCA, re-drawing the balance between workers’ and employers’ rights.”

The Court emphasised that the distinction between trade union activities and industrial action was a fundamental feature of the legislation that could not be overridden by interpretation.

Declaration of Incompatibility

The Court disagreed with the Court of Appeal’s refusal to make a declaration. Lady Simler held:

“section 146 is the only provision which limits the common law in this context and has the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the UK in breach of article 11. That is what is inherently objectionable in the terms of section 146 of TULRCA as it stands.”

Implications

This judgment is significant for employment law and human rights jurisprudence. It establishes that the complete absence of protection against detriments short of dismissal for lawful strike action is incompatible with Article 11 ECHR. The declaration of incompatibility places the matter before Parliament to determine how to legislate to remedy the incompatibility, though such a declaration does not invalidate the existing legislation or bind the parties. The case clarifies the limits of section 3 HRA interpretation where multiple policy choices exist and where amendment would contradict fundamental features of the legislative scheme.

Verdict: Appeal allowed in part. Declaration of incompatibility made under section 4 of the Human Rights Act 1998, declaring that section 146 of TULRCA is incompatible with Article 11 ECHR insofar as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.

Source: Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (17 April 2024)