The Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) provides protection to employees taking part in trade union activities including industrial action. TULCRA provides an absolute ban on dismissing an employee for taking part in industrial action, but there is no ban on subjecting employees to a detriment short of dismissal on the same grounds. Section 146 TULCRA protects employees against detriment for taking part in ‘trade union activities’ but not industrial action. Article 11 of the European Convention on Human Rights (ECHR) guarantees the right of workers to join a trade union. UK law must be interpreted in a way which gives effect to the ECHR.
In Mercer v Alternative Future Group, the employee was a support worker and Unison trade union representative. She was involved in organising strike action in which she intended to take part. She was suspended and subsequently disciplined for abandoning her shift. She brought a claim saying that the industrial action was a ‘trade union activity’ and she had suffered a detriment – the discipline – as a result. The employer said the discipline was unconnected to trade union activities and said taking part in strike action was not a protected activity under section 146.
The employment tribunal said that although strike action clearly was a trade union activity in ordinary language, section 146 did not cover strike action. Although they had to construe the law in line with article 11, the tribunal said that interpreting section 146 to include strike action would go against the grain of the legislation. The EAT disagreed. The lack of protection against detriment for taking part in industrial action was a breach of article 11. That interference with article 11 served no objective and was not justified. The fact that employees were protected against dismissal for striking but not detriment was a legislative anomaly. It didn’t matter that it was a private rather than public sector employer. Trade union activities under section 146 should now be read as including participation in industrial action, including during working hours.
The EAT has made it clear in this case that employees are protected against retaliatory detriment as well as dismissal if they take part in industrial action. Employers must take extra care when dealing with striking employees and ensure they do not fall foul of the redefined law.