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.

1 minute read

Published 17 April 2024

Authors

Share

Key information

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.

Related latest updates
PREV NEXT

Related content

Arrow Back to Insights

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

Authors

Need some more information? Make an enquiry below.

    Subscribe

    Please add your details and your areas of interest below

    Specialist sectors:

    Legal services:

    Other information:

    Jurisdictions of interest to you (other than UK):

    Article contributor

    Enjoy reading our articles? why not subscribe to notifications so you’ll never miss one?

    Subscribe to our articles

    Message us on WhatsApp (calling not available)

    Please note that Collyer Bristow provides this service during office hours for general information and enquiries only and that no legal or other professional advice will be provided over the WhatsApp platform. Please also note that if you choose to use this platform your personal data is likely to be processed outside the UK and EEA, including in the US. Appropriate legal or other professional opinion should be taken before taking or omitting to take any action in respect of any specific problem. Collyer Bristow LLP accepts no liability for any loss or damage which may arise from reliance on information provided. All information will be deleted immediately upon completion of a conversation.

    I accept Close

    Close
    Scroll up

    Find out about Business

    Find out about Dispute Resolution

    Find out about Individuals & Families

    Find out about Real Estate

    We are Collyer Bristow - The law firm for those that
    value individuality, creativity and collaboration.

    Legal & Pricing info Regulatory InformationAccessibilitySitemapPricing and service information

    Read our latest news: Tribute to our Partner, Tim Bamford

    Listen to our latest podcast: Take it on trust (Part 2)

    See our latest event: CB HigHer event: ‘Beyond the glass ceiling – Women staying at the top’

    Read our latest article: Supreme Court rules UK trade union law is ‘incompatible’ with human rights

    Listen to our latest podcast: Unveiling APP Fraud: Exploring the Barclays Quincecare Case

    ExpandNeed some help?Toggle

    < Back to menu

    I have an issue and need your help

    Scroll to see our A-Z list of expertise

    Get in touch

    Get in touch using our form below.



      Business Close
      Private Wealth Close
      Hot Topics Close