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Supreme Court rules UK trade union law is ‘incompatible’ with human rights

Senior Associate Sinead Kelly from our Employment team comments on the Secretary of State for Business and Trade v Mercer case.

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Published 17 April 2024

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Judges declare lack of protection from detriment for participating in lawful strike action to be a breach of Article 11 ECHR.

In the case of Secretary of State for Business and Trade v Mercer, the Supreme Court has ruled that Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) is incompatible with Article 11 of the ECHR (freedom of assembly and association). This landmark judgment acknowledges that there is a lack of statutory protection for workers who are subjected detriment (short of dismissal) for taking part in lawful strike action.

The case centres on a support worker employed by the care services provider, Alternative Futures Group. The employee, Fiona Mercer, was a workplace representative for the trade union UNISON. She organised and participated in lawful strike action and was subsequently suspended by her employer on basic pay. This resulted in a loss of pay for overtime that Ms Mercer would have otherwise worked. Ms Mercer brought a claim against her employer under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) claiming that she had been subjected to detriment short of dismissal for organising and participating in strike action.

Section 146 of TULRCA protects workers from detriment on grounds related to union membership or activities. However, the Supreme Court has now ruled that it does not provide workers with protection from detriment for participating in lawful strike action because it is limited to activities which are outside working hours and/or done at a time that is not inconsistent with the worker’s job responsibilities. The Supreme Court held that this lack of protection under Section 146 encourages unfair and unreasonable conduct by employers and places the UK in breach of its obligations under Article 11.

The Supreme Court does not have the power to strike down Section 146 of TULRCA just because it has held it to be incompatible with the European Convention on Human Rights (‘ECHR’). In accordance with section 4(6) of the Human Rights Act 1998, a declaration of incompatibility does not affect the continued validity, operation or enforcement of the provision in respect of which it is given, and it is also not binding on the parties in the proceedings in which it is made. The Supreme Court has therefore confirmed that as a result of the decision, it is up to Parliament to choose whether to legislate in this area, and if so, how. The Supreme Court’s decision does however send the message that the law should be amended to make it compliant with the ECHR.

For more information, please visit our Employment Lawyers page.

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Longer Reads

Supreme Court rules UK trade union law is ‘incompatible’ with human rights

Senior Associate Sinead Kelly from our Employment team comments on the Secretary of State for Business and Trade v Mercer case.

Published 17 April 2024

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

Authors

Judges declare lack of protection from detriment for participating in lawful strike action to be a breach of Article 11 ECHR.

In the case of Secretary of State for Business and Trade v Mercer, the Supreme Court has ruled that Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) is incompatible with Article 11 of the ECHR (freedom of assembly and association). This landmark judgment acknowledges that there is a lack of statutory protection for workers who are subjected detriment (short of dismissal) for taking part in lawful strike action.

The case centres on a support worker employed by the care services provider, Alternative Futures Group. The employee, Fiona Mercer, was a workplace representative for the trade union UNISON. She organised and participated in lawful strike action and was subsequently suspended by her employer on basic pay. This resulted in a loss of pay for overtime that Ms Mercer would have otherwise worked. Ms Mercer brought a claim against her employer under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) claiming that she had been subjected to detriment short of dismissal for organising and participating in strike action.

Section 146 of TULRCA protects workers from detriment on grounds related to union membership or activities. However, the Supreme Court has now ruled that it does not provide workers with protection from detriment for participating in lawful strike action because it is limited to activities which are outside working hours and/or done at a time that is not inconsistent with the worker’s job responsibilities. The Supreme Court held that this lack of protection under Section 146 encourages unfair and unreasonable conduct by employers and places the UK in breach of its obligations under Article 11.

The Supreme Court does not have the power to strike down Section 146 of TULRCA just because it has held it to be incompatible with the European Convention on Human Rights (‘ECHR’). In accordance with section 4(6) of the Human Rights Act 1998, a declaration of incompatibility does not affect the continued validity, operation or enforcement of the provision in respect of which it is given, and it is also not binding on the parties in the proceedings in which it is made. The Supreme Court has therefore confirmed that as a result of the decision, it is up to Parliament to choose whether to legislate in this area, and if so, how. The Supreme Court’s decision does however send the message that the law should be amended to make it compliant with the ECHR.

For more information, please visit our Employment Lawyers page.

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

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