Is taking part in industrial action an activity protected by section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992? No, held the Court of Appeal in Mercer v Alternative Futures Group.
Mrs Mercer is a support worker employed by Alternative Futures Group and she is also a trade union rep. In 2019, her trade union was in dispute with the employer regarding payments for sleep-in shifts and it organised discontinuous periods of strike action.
Mrs Mercer was interviewed by the press in respect of that action. On 26 March 2019, she was suspended by her employer. It was alleged she had abandoned two shifts and she had spoken to the press, which was likely to bring the organisation into disrepute.
Her suspension ended on 11 April 2019, but she was given a first written warning that was overturned on appeal. She unsuccessfully submitted a grievance and pursued an employment tribunal claim alleging detriment on the grounds of making a protected disclosure (more commonly known as whistleblowing) and detriment because of her suspension.
She interpreted this as deterring or preventing her taking part in the activities of a trade union at an appropriate time i.e. planning, organising, and taking part in industrial action.
This is a disappointing judgement for employees and reps should be aware of their rights in this area
The Employment Tribunal listed the case for a preliminary hearing to determine the following issue: “whether, in the light of Articles 10 and 11 of the European Convention on Human Rights, the activities protected by section 146 extend to participation in lawful industrial action as a member of an independent trade union."
The tribunal found that taking part in the activities of a trade union did not include participation in industrial action.
She appealed to the Employment Appeal Tribunal who overturned the Tribunal’s decision. The employer didn’t appeal that decision, but the Secretary of State for Business, Energy and Industrial Strategy intervened.
The Court of Appeal overturned the decision and restored the decision of the Employment Tribunal. It found that “it is far from obvious that article 11 requires protection to be given against every form of detriment, at any rate in a private sector case, in response to industrial action”.
Therefore, the 1992 Act does not provide protection for employees against action short of dismissal if they take part in industrial action. This is a disappointing judgement for employees and reps should be aware of their rights in this area.
