Supreme Court Ruling Exposes Gaps in Protection for Striking Workers in the UK
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Lack of Legal Protection for Striking Workers Highlighted by Supreme Court
The Supreme Court has ruled that the current lack of legal protection for workers participating in lawful strikes in the UK is incompatible with their rights under the European Convention on Human Rights. This ruling emerged from the case of Secretary of State for Business and Trade v Mercer, which involved a care worker, Ms. Mercer, who faced disciplinary action for her involvement in union activities.
Case Background: Secretary of State for Business and Trade v Mercer
Ms. Mercer, a care worker and trade union representative for UNISON, organized and planned lawful strikes against her employer due to a dispute over sleep-in shift payments. She publicly declared her intention to join the strikes and was subsequently suspended and warned by her employer for abandoning her shift and speaking to the press. Although the warning was later overturned, Mercer filed a complaint, arguing that her suspension was aimed at deterring her union activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
The initial employment tribunal rejected her claim, stating that section 146 did not protect workers from detriment short of dismissal. The Employment Appeal Tribunal (EAT) reversed this decision, but the Secretary of State appealed to the Court of Appeal, which upheld the original tribunal's judgment. The Court of Appeal noted that while the law's wording might breach Article 11 of the European Convention on Human Rights, it could not be rewritten by the court. Supported by UNISON, Mercer took her case to the Supreme Court.
Supreme Court Decision: Incompatibility with Convention Rights
The Supreme Court determined that UK law fails to protect workers from disciplinary actions, short of dismissal, for participating in lawful strikes, thus violating their convention rights. The Court emphasized that the right to strike is undermined if employees face detrimental treatment for participating:
“The right of an employer to impose any sanction it chooses, short of dismissal, for participation in lawful strike action nullifies the right to strike, as employees are unable to strike without exposing themselves to detrimental treatment. In that sense, section 146 both encourages and legitimises unfair and unreasonable conduct by employers.”
Despite acknowledging this incompatibility, the Supreme Court agreed with the Court of Appeal that section 146 could not be interpreted to align with convention rights and issued a declaration to that effect.
Impact and Future Implications
The Supreme Court's decision indicates that workers facing disciplinary actions for striking have limited legal recourse unless they are dismissed. This interpretation of section 146 will persist until legislative changes are made. Employers should be mindful of the ruling as it could complicate union negotiations and increase the likelihood of disputes. Additionally, acting against employees' convention rights may lead to reputational harm.
Although the government has not commented on the case, it is unlikely to amend TULRCA before the General Election due to limited parliamentary time. The Labour Party, leading in the polls, has pledged to update trade union legislation as part of their New Deal for Working People, aiming to empower workers and ensure fair pay and conditions.
In the interim, workers subjected to detriment for striking may seek redress from the European Court of Human Rights to enforce their convention rights.
