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Industrial action: Protection from suffering a detriment for participating in industrial action

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By Ceri Fuller & Hilary Larter


Published 07 April 2022


Overturning an EAT judgement, the Court of Appeal has held that UK legislation cannot be read as giving protection to employees against suffering detriment which falls short of dismissal for taking industrial action. 


The facts

UK legislation protects workers from suffering detriment for carrying out trade union activities.  UK legislation also protects employees from being dismissed for participating in industrial action in certain circumstances.  However, UK legislation had, before the EAT judgement in this case, been interpreted as not protecting workers against suffering detriment falling short of dismissal for participating in industrial action.

Mrs Mercer, a workplace representative for Unison, was employed as a support worker by Alternative Future Group Limited, a health and social care charity.  In early 2019, there was a trade dispute about payments for sleep in shifts and Unison called a series of strikes.  Mrs Mercer was involved in organising the strikes, and she took part in some media interviews.  She was suspended for leaving her shift and speaking to the media without authorisation.  The suspension was lifted, and a written warning for leaving her shift was imposed.  The warning was overturned on appeal.

Mrs Mercer claimed in the employment tribunal that her two week suspension was a detriment designed to prevent or deter her from participating in trade union activities, or to penalise her for doing so.  Her case was that the legislation protected her from detriment in relation to the planning and organisation of industrial action and her own participation in it.  Alternative Future Group resisted the claims on the basis that the suspension and disciplinary action were unrelated to any trade union activities.  It also argued that that the legislation did not protect her from suffering a detriment for having taken part in industrial action.

The employment tribunal rejected Mrs Mercer’s claim, interpreting the legislation as not extending to any form of industrial action.  The tribunal acknowledged that the UK legislation did not, in this regard, comply with European legislation, but it considered that UK legislation could not be interpreted in such a way that would make it compliant with European legislation.

Mrs Mercer appealed to the EAT. 

As we reported in July 2021, the EAT upheld the appeal, holding that taking disciplinary action against workers simply for exercising the right to strike would fundamentally contradict the right to freedom of association enshrined in the Human Rights Act.  Disagreeing with the employment tribunal, the EAT did not consider that there was any reason why the UK legislation could not be interpreted so that it was compatible with European legislation.

Alternative Future Group Limited did not appeal the EAT’s decision, but the Secretary of State was given permission to intervene and appealed to the Court of Appeal. 

The Court of Appeal allowed the appeal. 

The Court of Appeal agreed with the Secretary of State’s submission that European case law does not establish that UK legislation is required to unconditionally prohibit private employers from treating workers detrimentally on the grounds of having participated in industrial action.

The Court of Appeal agreed with the EAT and the employment tribunal that the failure of UK legislation to give employees protection against detriment for taking official industrial action might put the UK in breach of European legislation.  However, importantly, the Court of Appeal held that the addition of wording to the UK legislation can only be done by Parliament: this cannot be done by the courts.  It did so having found the grain of the UK law clearly excludes protection from detriment for taking part in industrial action so it was wrong to re-write it in a way which was inconsistent with its clear meaning. The Court found these principles apply to official action whether it is subject to a lawful ballot or not.  It is also clear the absence of protection from detriment applies to organising as well as taking part in industrial action.

Mrs Mercer was not therefore entitled to succeed with her claim. 


What does this mean for employers?

Unless Parliament amends the UK legislation (which seems unlikely in the near future) or this point is subject to action in the European Court of Human Rights or an appeal to the Supreme Court, UK employees in the private sector are not protected from detrimental treatment (short of dismissal) for organising or participating in industrial action.    

Mrs F Mercer v (1) Alternative Future Group Ltd; (2) Mr I Pritchard and Secretary of State for Business, Energy and Industrial Strategy