A UNISON representative was suspended for participating in lawful strike action. The Supreme Court held that section 146 of TULRCA, which provides no protection against detriment short of dismissal for lawful industrial action, is incompatible with Article 11 ECHR. A declaration of incompatibility was made.
Background
Fiona Mercer was employed as a support worker by Alternative Futures Group Ltd (‘AFG’) and served as a UNISON workplace representative. In early 2019, UNISON organised lawful strike action against AFG concerning the removal of ‘top-up’ payments for sleep-in shifts. Ms Mercer was involved in planning and participated in the industrial action. On 26 March 2019, she was suspended by AFG, ostensibly for abandoning her shift and speaking to the press without authorisation. During her suspension she received normal pay but lost overtime she would ordinarily have worked, and was removed from the workplace while the industrial action was in progress.
Ms Mercer brought a complaint under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’), contending that her suspension constituted a detriment imposed for the sole or main purpose of preventing, deterring, or penalising her participation in the activities of an independent trade union. The case proceeded on assumed facts — it was assumed that the purpose of the suspension was to deter her participation in lawful strike action. No findings of fact were made regarding AFG’s actual motives or the proportionality of its actions.
The Issue(s)
Three grounds of appeal were raised before the Supreme Court:
Ground 1: Article 11 ECHR protection
Whether Article 11 of the European Convention on Human Rights protects trade union members against sanctions intended to dissuade or penalise them for taking part in lawful industrial action organised by their union, and whether, on the assumed facts, the UK was in breach of a positive duty to provide effective protection through section 146.
Ground 2: Convention-compliant construction under section 3 HRA
Whether section 146 of TULRCA could be interpreted compatibly with Article 11 using the strong interpretative obligation in section 3 of the Human Rights Act 1998 (‘HRA’).
Ground 3: Declaration of incompatibility under section 4 HRA
If a compliant interpretation was not possible, whether the Court of Appeal erred in declining to make a declaration of incompatibility under section 4 of the HRA.
The Domestic Construction of Section 146
The Supreme Court confirmed the established domestic interpretation of section 146 of TULRCA. While the phrase ‘activities of an independent trade union’ in section 146(1) could, in ordinary language, encompass participation in lawful strike action, the statutory context precludes that reading. The definition of ‘appropriate time’ in section 146(2) limits protection to activities outside working hours, or within working hours with the employer’s consent. Since industrial action is ordinarily undertaken during working hours to have any effect, and without employer consent, it falls outside the definition of ‘appropriate time’.
This interpretation is supported by the wider structure of TULRCA. Section 152, the parallel provision protecting against dismissal on grounds of trade union activities, uses the same ‘appropriate time’ limitation. To interpret either provision as encompassing lawful strike action would render the detailed regime in Part V of TULRCA (sections 237–238A), which provides specifically limited protection against dismissal for participation in industrial action, otiose. As Lady Simler observed:
To construe section 152 as including lawful industrial action in working hours would mean that an employee dismissed for engaging in industrial action at an appropriate time could bring a claim for unfair dismissal under section 152 and thereby avoid the carefully constructed regime giving limited protection for dismissals in sections 237 to 238A.
Article 11 and the State’s Positive Obligations
The Court conducted a thorough review of Strasbourg jurisprudence. It confirmed that the right to strike is ‘clearly protected by article 11’ but is not a ‘core’ or ‘essential’ element of trade union freedom. In RMT v United Kingdom, the Strasbourg court expressly declined to accord the right to strike the status of an essential element of the Article 11 guarantee. Lady Simler rejected the appellant’s attempt to draw a distinction between ‘core’ and ‘essential’, holding:
It seems to me to be clear from the passages cited above that the court used ‘essential’ and ‘core’ interchangeably and declined to hold that strike action is core.
The Court also recognised an important distinction between cases where the state acts as a public sector employer directly imposing sanctions on striking workers (where a narrow margin of appreciation applies) and cases concerning the state’s positive obligation to regulate private sector employment relationships (where a wider margin is afforded). Lady Simler stated:
The present case concerns the state’s positive obligations as regulator of relationships between private employers and workers in relation to a right that is protected but is not a core right.
However, the Court rejected the Secretary of State’s argument that the existing legislative framework struck a fair balance. Lady Simler held that the absence of any protection at all against detriment short of dismissal for participation in lawful industrial action was incompatible with Article 11:
In my judgment the right of an employer to impose any sanction at all short of dismissal for participation in lawful industrial action nullifies the right to take lawful strike action. If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves.
She further observed:
I consider that 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 (including as regards the private sector). Indeed, I find it difficult to see how a balance has been struck at all.
Section 3 HRA: Convention-Compliant Interpretation
The appellant proposed reading a new sub-paragraph (c) into section 146(2), extending the definition of ‘appropriate time’ to include time within working hours when the worker is taking part in ‘protected industrial action’ within the meaning of section 238A(1). The Court rejected this as going beyond what section 3 of the HRA permits.
Lady Simler identified two principal reasons. First, there was no single, obvious legislative solution that would ensure compliance with Article 11 while maintaining an appropriate balance between competing rights. Significant policy choices were involved:
I do not consider that there is a single, obvious legislative solution that will ensure compliance with article 11 while at the same time maintaining an appropriate balance between the competing rights of employers and their workers in this politically and socially sensitive context.
Second, the proposed interpretation would contradict a fundamental feature of the legislative scheme:
To interpret section 146 as proposed by the appellant would contradict a fundamental feature of the legislative scheme in TULRCA.
The Court observed that the proposed reading would create a stark inconsistency between sections 146 and 152 — identically worded sibling provisions with a shared legislative history. It would also confer on ‘limb (b) workers’ broader protection regarding detriment short of dismissal than employees enjoyed regarding dismissal itself. Lady Simler concluded:
Where the new interpretation involves a significant departure from a fundamental feature of the primary legislation concerned, giving rise to possible ramifications that the court is ill-equipped to evaluate, the limits of section 3 are reached, and a Convention-compliant interpretation is not possible.
Declaration of Incompatibility under Section 4 HRA
The Court of Appeal had declined to make a declaration of incompatibility, reasoning that the incompatibility arose from a ‘lacuna in the law rather than a specific statutory provision’. The Supreme Court disagreed. Lady Simler held that section 146 was the specific provision which, by excluding protection for participation in lawful industrial action, had the implicit effect of legitimising sanctions short of dismissal:
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.
The Court further held that the existence of policy choices in remedying the incompatibility was a reason in favour of making a declaration, not against it:
The existence of policy choices in the means of giving effect to the lawful strike rights protected by article 11 is a reason in favour of making a declaration of incompatibility, not refusing one. It is for Parliament to decide whether to legislate and, if so, the scope and nature of such protection.
Practical Significance
This decision is of major importance for trade union law and the protection of the right to strike in the United Kingdom. It establishes authoritatively that the complete absence of any domestic law protection against detriment short of dismissal for workers participating in lawful industrial action is incompatible with Article 11 of the ECHR. However, the Court stopped short of prescribing the form such protection should take, recognising that this involves sensitive policy choices properly belonging to Parliament. The declaration of incompatibility does not affect the validity or continuing operation of section 146 of TULRCA, but signals to Parliament that legislative reform is required. The judgment is also significant for its analysis of the limits of section 3 HRA, confirming that even the powerful interpretative obligation cannot be used to rewrite legislation in ways that contradict fundamental features of the statutory scheme or require the court to make policy choices with far-reaching practical ramifications.
Verdict: The appeal was allowed in part. The Supreme Court made a declaration of incompatibility under section 4 of the Human Rights Act 1998 that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is incompatible with Article 11 of the European Convention on Human Rights, 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. However, the Court upheld the Court of Appeal’s conclusion that a Convention-compliant interpretation of section 146 under section 3 of the HRA was not possible.
Source: Secretary of State for Business and Trade v Mercer [2024] UKSC 12
