F Mercer v Alternative Futures Group Ltd and Others

An employment appeal tribunal (EAT) has held that employees cannot face a detriment for taking part in industrial action, even if the detriment is not dismissal.

The law relating to industrial action can be complicated.

Under section 145A of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it is unlawful for organisations to make an offer to a worker where the sole or main purpose is to persuade the individual:

  • not to be or become a member of an independent trade union;
  • not to take part, at an appropriate time, in the activities of an independent trade union;
  • not to make use, at an appropriate time, of trade union services; or
  • to become a member of any trade union or of a particular trade union.

Whereas the provisions of section 145 may be regarded as a general prohibition on organisations offering inducements or incentives, the provisions of section 146 are aimed at the reverse scenario; where an organisation is tempted to impose some form of detriment for the same or similar reasons.

section 146 makes it unlawful for an organisation to subject any worker to a detriment or any deliberate failure to act for the main purpose of:

  • preventing or deterring the individual from being or seeking to become a member of an independent trade union or penalising him/her for doing so
  • preventing or deterring the individual from taking part in the activities of an independent trade union at an appropriate time or penalising him/her for doing so
  • preventing or deterring the individual from making use of trade union services at an appropriate time or penalising him/her for doing so
  • compelling the individual to be or become a member of any trade union or of a particular trade union
  • enforcing a requirement (whether or not imposed by a contract of employment or in writing) that, in the event of his/her not being a member of any trade union, he/she must make one or more payments.

A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker's failure to accept an offer made in contravention of section 145A or 145B above.

In the event of a breach of section 146, a tribunal has a general discretion to make an award that it feels is just and equitable given the infringement.

FACTS

The claimant, Mrs Mercer, worked as a support worker for Alternative Future Group (AFG), one of the respondents.  Mrs Mercer was part of the trade union Unison and was a workplace representative for the union. In March 2019, due to AFG’s plans to cut its sleep-in workers’ pay, Unison planned a number of strikes. 

Mrs Mercer was suspended on 26 March 2019 for planning and taking part in a strike. She also received a written warning for leaving her shift early; but the suspension was later lifted, and the sanction was overturned after an appeal.

On 23 August 2019, Mrs Mercer applied to an employment tribunal (ET), claiming that she had faced a detriment by being suspended and that AFG had done so to prevent her planning and organising industrial action. She cited section 146 of TULRCA, further arguing that the “activities of an independent trade union” outlined in TULRCA includes not only the planning and organisation of industrial action but also participating in it.

ET

The ET took the European Convention on Human Rights (ECHR) into account in its decision, namely Articles 10 (freedom of expression) and 11 (freedom of assembly and association). The ET considered whether, with the Articles in mind, section 146 of TULRCA can extend to participating in industrial action. 

It was ultimately held that whilst participating in industrial action does form part of the activities conducted by trade unions, the proper interpretation of section 146 means that it cannot be extended to participation.

The ET went on to say that Mrs Mercer cannot pursue a claim that section 146 was breached “if the sole or main purpose was to prevent or deter her from actually participating in that industrial action.” She can, however, still pursue her case under section 146 on the basis that the “sole or main purpose of the suspension was to prevent or deter her from taking part in the planning and organisation of industrial action”.

Mrs Mercer appealed to the EAT.

EAT

The EAT allowed the appeal, taking into account section 3 of the Human Rights Act 1998 which states that, where possible, “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the ECHR.” 

The EAT pointed out that “any restriction on the right to strike, however minor, may be found to amount to an infringement of Article 11 of ECHR.” On that point, the EAT held that there are no provisions within TULRCA to suggest that workers are not, and should not be, protected from detriment for participating in industrial action.

Note for employers

It is already an existing provision in law that an employee can claim for unfair dismissal if their employment is terminated for taking part in most strikes. This judgement by the EAT, however, means that organisations need to be cautious about how they deal with these issues even if dismissal is not the result. 

This is because, as has now been made clear by the EAT, sanctioning employees for participating in industrial action can translate to organisations infringing on their right to participate in trade union activities. It is therefore advisable that organisations, in order to avoid costly tribunal claims, hold consultations with employees and allow them to express their concerns and negotiate suitable solutions.

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