• Adil Khan

EAT Decision Extends Protection For Workers Involved In Industrial Action

The history of the law and industrial action has been a long and, at times, unhappy one. Nevertheless, both legislation and case law have mapped out the often fractious borderland on which industrial action (in its many forms) sits and for a number of years, tribunals have interpreted it case by case, although working from a legislative basis that left all sides fairly sure of what the law said on the matter.

However, the ground shifted earlier this year, with an Employment Appeal Tribunal (“EAT”) case and it has left employers on the back foot when it comes to dealing with industrial action involving their workers.

The issue

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) states that a worker who is taking part in the activities of an independent trade union is protected against related detriment. However, case law has interpreted ‘activity’ to exclude industrial action.

Whether this is correct and workers taking steps to prepare for and take part in industrial action should also have that protection was the question raised by the case of Mercer v Alternative Future Group Ltd (AFG) and Others. This turned on whether Section 3 of the Human Rights Act 1998 (“HRA 1998”) meant that Section 146 of TULRCA should in fact include industrial action.

What happened?

Alternative Future Group is a health and social care charity. Mrs Mercer was employed by them as a support worker and she was a workplace representative for her trade union, UNISON. A dispute arose about payments for sleep-in shifts. Unison called a series of strikes and Mrs Mercer was involved in planning and organising these. Mrs Mercer took part in some media interviews where she said that she would be participating in the strike action herself. This resulted in Mrs Mercer subsequently being suspended.

Mrs Mercer was told that this was because she had abandoned her shift on two occasions without permission and had spoken to the press without prior authorisation. The suspension was lifted but disciplinary action continued, and she was given a first written warning for leaving her shift. That was overturned on appeal. Mrs Mercer lodged a grievance, but this was rejected by AFG.

She then submitted a tribunal claim with the support of her union, saying that she had been subjected to a detriment (her suspension) and this was in breach of Section 146 of TULRCA. She said that her suspension was to “prevent or deter her from participating in the activities of an independent trade union at an appropriate time, or to penalise her for doing so”.

Her case was that the “activities of an independent trade union” within the meaning of Section 146 of TULRCA included both the planning and organisation of the industrial action and her own participation in it.

The Tribunal said that the issue was whether such activities protected by Section 146 of TULRCA extended to participation in lawful industrial action as a member of an independent trade union. They said that the proper interpretation of Section 146 of TULRCA was that it did not.

The Tribunal then considered whether Article 11 of the European Convention on Human Rights (“ECHR”) offered protection to those subjected to a detriment for the purposes of penalising or deterring them from engaging in lawful industrial action, and concluded that it did. The judge said:

“I therefore accepted…that as the relevant provisions in TULRCA have been interpreted in domestic law the UK has failed to provide effective and clear judicial protection in respect of industrial action which is part of the rights guaranteed by Article 11 of the ECHR".

The Tribunal considered whether, in light of Section 3 of the HRA 1998, Section 146 of TULRCA could be interpreted in a way which made it compliant with Article 11 of the ECHR. They concluded that it could not and therefore Mercer’s claim under Section 146 of TULRCA was dismissed. She subsequently appealed to the EAT making use of judgments from courts in France and Turkey amongst others, agreed with her.

What the law says

When employees are taking part in union activities and/or industrial action, they are protected under TULRCA, as follows:

Section 238A of TULRCA states that if an employee is dismissed because they took part in industrial action, that dismissal will automatically be unfair.

Section 146 of TULRCA states that workers must not be subjected to a detriment if the sole purpose of that detriment is to deter them from taking part in the activities of an independent trade union at an appropriate time.

Section 152 of TULRCA states that if an employee is dismissed for taking part in, or planning to take part in, the activities of an independent trade union at an appropriate time, that dismissal will automatically be unfair.

Since Part 5 of TULRCA deals specifically with dismissal for taking part in industrial action, tribunals have drawn the conclusion that Section 152 of TULRCA does not cover this. As the same wording is also used in Section 146 of TULRCA, it has been interpreted in the same way.

The crux of the case was whether this interpretation was compatible with Section 3 of the HRA 1998 and, by extension, Article 11 of the ECHR.

Both tribunals found that it wasn’t. The Employment Tribunal didn’t think that it was possible to interpret Section 146 of TULRCA so that it was compatible with Article 11 of the ECHR, but the judge at the EAT said that Parliament had intended that trade union law should be compliant with the ECHR.

“There is nothing else in the HRA 1998 to suggest that one of its cardinal features is to deny workers protection against detriment by reason of participating in industrial action. Furthermore…there is nothing in the legislative history or any Parliamentary debate to suggest that the denial of such protection was a core aim; on the contrary, Parliament’s expressly stated aim is that trade union law should comply with Article 11 of the ECHR.”

What did the EAT do?

While the ET had recognised the incompatibility of Section 146 of TULRCA with Article 11 of the ECHR, they felt that they were unable to reconcile the two and hewed to Section 146 of TULRCA. The EAT decided to allow the appeal and read down the Section 146 of TULRCA by adding a new definition of 'an appropriate time' in section 146(2) to include "(c) a time within working hours when he is taking part in industrial action".

What employers need to know

Workers already have protection against dismissal due to involvement in strike action or other workplace disputes. However, due to this judgment, employers should now take a more cautious approach when considering action short of dismissal against workers who have been involved in preparing for industrial action or taking part in it and should definitely seek legal advice before acting.

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