Supreme Court of the United Kingdom: While deliberating over the instant dispute wherein the question was that whether Section 146 of the Trade Union’s and Labour Relations (Consolidation) Act, 1992 (TULRCA) can properly be interpreted as extending to provide protection to employees who have been given deterrent sanctions short of dismissal or penalised for participating in a lawful strike action; the 5-Judge Bench of Lord Lloyd-Jones, Lord Hamblen, Lord Burrows, Lord Richards, Lady Simler*. JJ., unanimously held that Section 146 of TULRCA is incompatible with Article 11 of European Convention on Human Rights (ECHR), insofar as 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 organised by their trade union.
Background: The appellant was employed as a support worker in the care sector by a care services provider, Alternative Futures Group Ltd (AFG). As a workplace representative of UNISON, the appellant took part in lawful strike action. She was subsequently suspended by AFG; however, while on suspension, the appellant still received her normal pay but was unable to earn payment for the overtime that she would otherwise have worked.
Hence the appellant brought a claim against AFG under Section 146 of TULRCA contending that, she has suffered detrimental treatment for the sole purpose of preventing or deterring her from taking part in the strike activities of an independent trade union “at an appropriate time”.
Issues before the UK Supreme Court: Taking note of the fact that employees who are dismissed for taking part in lawful strike action, have some statutory remedies for unfair dismissal, but there is no express statutory protection in domestic law against sanctions short of dismissal, intended to deter or penalise an employee for participating in a lawful strike action, the Court had to deliberate over the following issues-
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Can a worker who is subject to detriment for the purpose of preventing or deterring her participation in a union-organised industrial action can potentially bring a claim under S. 146(2)(b) of TULRCA?
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Does Art. 11 ECHR protect workers in such circumstances, and can the absence of sufficient protection under S. 146 TULRCA as conventionally interpreted be justified under Art. 11(2); and whether is it possible to interpret S. 146 TULRCA so as to be compatible with Art. 11, or should the Court make a declaration of incompatibility?
Court’s Assessment:
Part III of TULRCA concerns rights in relation to union membership and activities, with Section 146 being at the fulcrum of the instant appeal. The Court noted that as a matter of domestic interpretation, Section 146 of TULRCA has been interpreted as not providing protection from detriment short of dismissal to workers engaged in lawful strike action, because the words “at an appropriate time” has been defined to exclude working time (except where the employer has consented to the activities in question) so that they limit the protection available to activities which are outside working time and/or not inconsistent with the worker’s performance of their primary duties to their employer.
Protection under S. 146 is therefore limited to activities which are outside working hours and/or done at a time that is not inconsistent with the worker’s job responsibilities. Industrial action will normally be carried out during working hours if it is to have the desired effect, since for workers to withhold their labour at a time when the employer has no expectation of labour being provided is unlikely to have any consequence for the employer.
It was noted that Section 152 of TULRCA provides corresponding protection against dismissal (as opposed to detriment short of dismissal). The provision makes it automatically unfair to dismiss an employee (but not a worker who is not an employee) which includes dismissal for taking part in trade union activities at an appropriate time.
The Court pointed out that by contrast, employees who participate in lawful industrial action have limited protection against dismissal under sections 237 to 238A of TULRCA. “To construe section 152 as including lawful industrial action in working hours would mean that an employee dismissed for engaging in industrial action at an appropriate time could bring a claim for unfair dismissal under section 152 and thereby avoid the carefully constructed regime giving limited protection for dismissals in sections 237 to 238A. An employee cannot fall within both schemes at the same time”.
Considering this lack of protection in TULRCA for workers taking part in lawful industrial action against detriments, the Court then focussed on Art. 11 of ECHR Convention and pointed out that cases decided by European Court of Human Rights demonstrate that, although the right to strike is protected by Art. 11, but neither it is a core right, nor it is an absolute right. It was further pointed out that the instant case concerns the UK’s positive obligations to protect the right to strike as regulator of relationships between private employers and workers. In such cases, the ECHR has afforded states a wider margin of appreciation because of the sensitive social and political issues engaged. The UK is not required to provide universal protection in all circumstances to all workers against any detriment intended to dissuade or penalise them from participating in a lawful strike. However, it does not mean that the UK has no positive obligations at all. “Legislative scheme must strike a fair balance between the competing interests of employers and workers, and any restriction to the protection of Art. 11 rights must be justified, recognising the margin of appreciation to be accorded to the State”.
The Court stated that since Section 146 of TULRCA does not afford any protection to employees facing deterrent sanctions for participating in lawful strikes, in that sense, Section 146 both encourages and legitimises unfair and unreasonable conduct by employers. “Had there been legislation addressing detrimental treatment short of dismissal for lawful strike action, it might be possible to say that a fair balance had been struck”. Therefore, the lack of such protection places the UK in breach of its obligations under Art. 11 of the ECHR Convention.
The Court had to consider that whether under Section 4 of the UK’s Human Rights Act (HRA), can it make a declaration of incompatibility. A declaration of incompatibility does not affect the validity, thereby continuing operation or enforcement of the relevant provision unlike interpretation under Section 3 of HRA, which does not enable the Court to change the substance of a provision as this would amount to impermissible judicial legislation rather than interpretation.
Disagreeing with the rationale of the Court of Appeal that it cannot make any declaration of incompatibility under S. 4, HRA, the Supreme Court pointed out that Section 146 is the only route that could be available to the appellant to vindicate her Art. 11 right in the domestic courts or tribunals. “But this route is blocked by the conventional interpretation given to S. 146 of TULRCA. That is what is inherently objectionable in the terms of S. 146 as it stands and means that it is incompatible with Article 11 of the Convention”.
It was pointed out that the Court has discretion to vis-à-vis making a declaration of incompatibility. “(…) determining how to strike a fair balance between the competing interests at stake are matters for Parliament to address, and it is for Parliament to choose whether to legislate in this area, and if so, how. But this is not a basis for refusing to make a declaration in this case”.
Therefore, with the afore-stated analysis, the Court declared S. 146 of TULRCA to be incompatible with Art. 11 of the Convention insofar as the lack of protection for employees facing deterrent penalties for participating in lawful strikes.
[Secretary of State for Business and Trade v. Mercer, [2024] UKSC 12, decided on 17-04-2024]
*Judgment authored by Lady Simler
