Litigation continues on the scope of trade union detriment legislation

In March 2022, the Court of Appeal reversed an Employment Appeal Tribunal ruling which extended the scope of legal provisions protecting workers from being subject to a detriment for taking part the activities of an independent trade union. The Court said that workers taking part in any kind of industrial action are not protected from detriments other than dismissal under our domestic law.

As the law had previously been understood, workers taking part in industrial action enjoyed no protection against detriment short of dismissal, though there is a complex regime which protects workers against dismissal for this reason. However, last year the EAT decided that the expression “trade union activities” in section 146 Trade Union and Labour Relations Act – which deals with detriments short of dismissal – should be read as extending to industrial action. In the EAT’s view, this was required to give effect to the UK courts’ obligation under the Human Rights Act to interpret domestic legislation compatibly with rights conferred by the European Human Rights Convention (in this case Article 11).

The Court of Appeal has now said that this interpretive obligation should not stretch to what would amount to a complete re-write of section 146. That section provides that protection is limited to trade union activities undertaken “at an appropriate time”, which is hard to read as extending to industrial action. In addition, it is difficult to understand why, had Parliament intended to extend the protection of section 146 in this way, it did not include provisions making a distinction between official and unofficial action which can be found elsewhere in the Act.

In the view of the Court, Parliament had very clearly intended a distinction between:

• The broad range of protection that it considered should be available to employees in relation to membership of a trade union or taking part in a wide range of trade union activities generally (contained in Part III of the Act); and
• The much more limited protection, from dismissal only, that should be available in relation to industrial action (contained in Part V of the Act).

In this case, the original complaint brought by Fiona Mercer was about being suspended and given a written warning for taking part in industrial action. This ruling from the Court of Appeal has left her without a remedy, but does not necessarily shut the door to similar claims in the future. While it did not make a declaration of incompatibility in this case, it said that subjecting a worker to a determinant short of dismissal could amount to a breach of article 11 “if the sanction is one which strikes at the core of trade union activity”.

Were a public sector worker be subjected to such a sanction, it would be possible to rely directly on article 11 against their employer, since it would be regarded as an “emanation of the state”. For employers who are not in the public sector, particularly if there is union backing, claimants could put pressure on the Government to amend section 146 by seeking a declaration of incompatibility in an appropriate case. For now, the Government – which intervened in this litigation by appealing against the EAT’s ruling – has seen off this threat.

However, Ms Mercer has now applied to the Supreme Court for permission to appeal. Should this be granted, the Court of Appeal’s decision will not be the final word on the correct interpretation of section 146.

The Court of Appeal had been due to hear an appeal in a similar dispute (Morais v Ryanair) later this year. Last year, the EAT in Ryanair followed Mercer in ruling that the protection against detriment in section 146 extended to unofficial as well as official industrial action. The appeal process in Ryanair has now been paused, pending a decision from the Supreme Court on the permission to appeal in Mercer. It appears to have been assumed that a final ruling from the Supreme Court in Mercer would in effect determine the outcome of the employer’s appeal in Ryanair.