Mercer v Alternative Future Group Ltd & Anor.

On ordinary construction, the protection against detriment in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 does not extend to taking part in or organising industrial action. Article 11 may nevertheless require protection against sanctions short of dismissal, including in private-sector employment, where the sanction strikes at the core of trade union activity. The protection required is fact-sensitive; secondary or accessory activity attracts a wider margin of appreciation. The no-work, no-pay rule is compatible with Article 11. Section 3 of the Human Rights Act 1998 cannot be used to add a new statutory limb where doing so involves major policy choices and judicial legislation. A declaration under section 4 was inappropriate because the complaint concerned a legislative lacuna of uncertain scope.

Fiona Mercer, a support worker and trade union representative, was suspended during lawful, union-organised strikes. She alleged that the suspension was imposed to deter or penalise participation in trade union activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and Article 11 of the European Convention on Human Rights.

The Employment Tribunal held that section 146 did not protect participation in industrial action and dismissed that part of the claim. The Employment Appeal Tribunal, in UKEAT/0196/20/JOJ, allowed the claimant’s appeal and read section 146 more widely under section 3 of the Human Rights Act 1998. The Secretary of State appealed. The central questions were whether Article 11 required further protection and whether the proposed interpretation was permissible.

1. Appeal allowed. The Court of Appeal restored the Employment Tribunal’s decision. There was no order as to costs.
2. On ordinary construction, the phrase “activities of an independent trade union” in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not include participation in or organisation of industrial action. The Act drew a structural distinction between Part III union activities and Part V industrial action. The separate dismissal regimes in section 152 and sections 237, 238 and 238A reinforced that conclusion. The reasoning in Drew v St Edmundsbury Borough Council [1980] ICR 513 was consistent with it.
3. Article 11 could impose positive obligations on the United Kingdom even where the employer was private. The criteria governing positive and negative obligations were materially similar. The Strasbourg authorities concerning direct industrial action by public-sector employees did not establish that every detriment in private employment was prohibited. Under National Union of Rail, Maritime and Transport Workers v United Kingdom [2014] IRLR 467, the margin of appreciation was narrower where a restriction struck at the core of trade union activity and wider where it concerned secondary or accessory activity. A failure to protect against a sanction short of dismissal for official industrial action might breach Article 11 if the sanction struck at that core. The no-work, no-pay rule was accepted as compatible with Article 11. No findings had been made about the employer’s motive, the nature of the sanction, or proportionality.
4. Section 3 of the Human Rights Act 1998 could not be used to insert an additional limb into section 146. The possible choices concerned the classes of industrial action, duration of protection and forms of detriment. Making those choices would amend the legislation, not interpret it. The principles in Ghaidan v Godin-Mendoza [2004] 2 AC 557, Poplar Housing and Regeneration Community Association Ltd v O’Donoghue [2002] QB 48 and In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10 supported that conclusion.
5. A declaration under section 4 was also inappropriate. The complaint concerned an alleged gap in the statutory scheme, whose extent and appropriate remedy were uncertain. Bellinger v Bellinger [2003] UKHL 21 concerned a specific incompatible provision and did not establish a general power to declare a legislative lacuna incompatible.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and restored the Employment Tribunal’s decision.
• Employment Appeal Tribunal: In UKEAT/0196/20/JOJ, allowed the claimant’s appeal and interpreted section 146 more widely under section 3 of the Human Rights Act 1998.
• Employment Tribunal: Held that section 146 did not protect participation in industrial action and dismissed that part of the claim.