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Significant new case law limits an employer’s response to industrial action

  • United Kingdom
  • Employment law
  • Labor law and trade union issues

08-06-2021

The Employment Appeal Tribunal (EAT) has held that UK strike law is incompatible with human rights law and it must be reinterpreted to comply.

This is a significant change in the law and is particularly relevant where an employer contemplates taking action against those striking, other than deducting pay for work not done during the strike, such as withdrawing benefits.

Legal background

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects workers against detriments short of dismissal imposed by their employer for the sole or main purpose of preventing or deterring them from taking part in union activities or penalising them for doing so.

However, the wording of TULRCA limits this protection to activities undertaken by the worker at an ‘appropriate time’, namely, outside working hours or at a time agreed with their employer.

Given that most industrial action takes place during working hours (and employer consent is unlikely to have been given), case law has previously decided that taking part in industrial action is not included in the definition of trade union activities undertaken ‘at an appropriate time’.

Therefore, where an employer subjects a striking worker to a detriment, such as withdrawing benefits or taking disciplinary action, binding authority held that section 146 did not confer protection.

This exception has now been successfully challenged in the EAT (below), relying on human rights legislation, in particular, Article 11 of the European Convention on Human Rights (ECHR), which includes the right to join trade unions (which may be subject to limited restrictions), and the Human Rights Act, which gives effect to Convention rights in domestic law.

Facts - Tribunal rejects detriment complaint

The claimant, a Unison representative, was suspended and disciplined by her employer for leaving her shift, to take part in strike action, and for speaking to the media about the strike without prior authorisation.

She complained to a tribunal that her suspension was a section 146 detriment, with the purpose of deterring her from, or penalising her for, organising and taking part in the industrial action. The tribunal agreed in principle, deciding that excluding the taking part in industrial action from section 146 protection was an infringement of Article 11 ECHR, but also ruled that it was not possible to reinterpret the wording in TULRCA to comply with Article 11. The claim was therefore rejected. The claimant appealed.

EAT finds UK strike law is incompatible with human rights

Allowing the appeal, the EAT held that the tribunal was correct that the failure to confer protection against detriment for participating in industrial action amounts to an unjustified infringement of Article 11 but wrong to find that a compatible interpretation of section 146 would ‘go against the grain of the legislation’. 

The EAT concluded that giving effect to section 146 so as to include protection against detriment for those participating in industrial action is possible. In so doing, the EAT clarified that the deduction of pay from those striking remains permissible and would not amount to a detriment under section 146, as reinterpreted.

The EAT accepted that the right to strike is protected by Article 11 and that the European Court of Human Rights has established that any restriction on this right can give rise to an interference with Article 11. In so doing, it rejected an argument that the UK has latitude, under Article 11, to restrict protection for action short of dismissal, holding that such latitude is narrow where a restriction on direct industrial action is contemplated, as in this case, and ‘solid evidence’ was needed to justify its necessity (which had not been argued in this case, according to the EAT).

Practical implications for employers

Employers preparing to respond to threatened or actual industrial action should take advice, given the significant legal and financial risks arising from the EAT’s decision.

In addition, it should be noted that how employers respond to industrial action is the subject of separate litigation involving union claims of blacklisting. These are currently first instance decisions and await binding EAT outcomes. For this reason too, employers need to tread carefully when responding to industrial action including strikes.

Link to the case: Mercer v AFG Ltd and Others