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

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

Published 6 julio 2021

UK legislation should be interpreted so that workers are protected from suffering a detriment for participating in industrial action.

THE FACTS

UK legislation protects workers from suffering detriment connected with trade union activities.  However, the legislation has (before this case) been interpreted as not protecting workers  against detriment related to participation 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 her 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, which upheld her appeal.  In the EAT’s view, permission of 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. They rejected an argument that industrial action could never be “at an appropriate time” as required by the law.  The EAT found the words “a time within working hours when he is taking part in industrial action” should be added to the definition of “at an appropriate time”.

WHAT DOES THIS MEAN FOR EMPLOYERS?   

This decision prevents an employer from lawfully taking any steps short of dismissal against union officials taking part in or organising official industrial action, other than docking pay.  Dismissing anyone for taking part in lawfully balloted official industrial action will usually be automatically unfair.  However, this decision leaves many unanswered questions, including whether a representative can lose this protection by the manner in which s/he takes part in the action.  The EAT is shortly due to hear another case on this issue. Therefore, we don’t think this decision is the last word on the matter.

Mrs F Mercer v Alternative Future Group Ltd and Others: UKEAT/0196/20/JOJ

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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