Trade union law ruled incompatible with Human Rights Convention

The Supreme Court has decided to make a declaration that Great Britain’s trade union legislation does not comply with article 11 of the European Human Rights Convention. That is because it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action. The declaration opens the way for a fast-track procedure which Parliament can use to make the necessary amendments to the legislation. In the meantime, the law will not change.

The case is about the interpretation of section 146 Trade Union and Labour Relations (Consolidation) Act 1992. Among other things, this protects workers against detriment short of dismissal for taking part in trade union activities “at an appropriate time”. Traditionally, this has been interpreted as excluding strike action, since the definition defines “appropriate time” as excluding action taken during working hours unless this is with the employer’s agreement.

The claimant, Fiona Mercer, is employed by a private care services provider. She was suspended and lost overtime pay after being involved in official strike action. She challenged the established interpretation of section 146, arguing it was incompatible with article 11. This issue was taken as a preliminary point, on the assumption that Ms Mercer would be able to prove the link between her loss of pay and her participation in the strike.

After two intermediate appeals, the Supreme Court had to answer three questions:

• Does the traditional interpretation of section 146 put the UK in breach of the Convention?
• If so, can it be interpreted compatibly with the claimant’s convention rights?
• If not, should a declaration of incompatibility be made?

Is UK in breach of Convention?

The Supreme Court answered this question in the affirmative. It concluded:

“In the context of the scheme of protection that is available, it is hard to see what pressing social need is served by a general rule that has the effect of excluding protection from sanctions short of dismissal for taking lawful strike action in all circumstances. Seen in this way, section 146 of TULRCA both encourages and legitimises unfair and unreasonable conduct by employers.”

Is a compliant interpretation possible?

The Supreme Court agreed with the Court of Appeal that a compliant interpretation was not possible, mainly because it would involve departing from a “fundamental feature” of the legislation concerned.

Among other things, there were questions about the relationship with the provisions elsewhere in TULCRA which include some protection against dismissal for employees taking part in official industrial action. It would also involve evaluating the extent of the protection to be offered against detriment, since article 11 did not necessarily require protection in all circumstances.

Should a declaration of incompatibility be made?

In its answer to the final question posed, the Supreme Court disagreed with the Court of Appeal and decided that it was appropriate to make a declaration. It concluded as follows:

“The ultimate legislative solution to the problem identified in this case may call for enquiry. Questions of policy will have to be addressed and evaluated, their practical ramifications considered, and a fair balance struck between all the competing interests at stake. But the existence of policy choices in the means of giving effect to the lawful strike rights protected by article 11 is a reason in favour of making a declaration of incompatibility, not refusing one.”

Where does this decision leave employers?

Employers in the private sector will be unaffected by this decision, though they will need to prepare for a possible change in the law.

The position is different in the public sector, since public authorities have a duty under the Human Rights Act not to act in a way which is incompatible with Convention rights. That means that in some circumstances public sector workers who are subjected to a detriment for taking official strike action may be able to bring proceedings under the Act to challenge their employer’s actions.

In either case there remain good industrial relations reasons why employers will not normally wish to act in a way that penalises workers who take part in industrial action.

It is worth adding that this decision does not impact the ability of all employers to withhold pay during the period of a strike, since doing that does not involve a breach of article 11.