Mercer v Alternative Future Group Ltd & Anor.

The Court of Appeal considered whether taking part in industrial action falls within the protection against detriment in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and whether the provision can be read in conformity with Article 11 of the European Convention on Human Rights by reference to section 3 of the Human Rights Act 1998. The court held that, on ordinary principles of statutory interpretation, section 146 does not extend to participation in or organising industrial action because industrial action is dealt with in Part V of TULRCA while other trade union activities are governed by Part III. The court accepted that in some circumstances the United Kingdom might be in breach of its positive obligations under Article 11 if the state provided no protection for sanctions short of dismissal that struck at the core of trade union activity, but concluded that it would be impermissible judicial legislation to read additional protection into section 146 under section 3 HRA. The court refused to make a declaration of incompatibility under section 4 HRA because the perceived lacuna is a policy and legislative matter properly for Parliament rather than for the courts.

Background and parties. The claimant, Fiona Mercer, a UNISON workplace representative employed by Alternative Future Group Ltd, was suspended during a period of union-organised strikes about sleep-in payments. She alleged a detriment contrary to section 146 TULRCA for being suspended to deter or penalise participation in trade union activities. The employer accepted that organising at an appropriate time could attract protection but maintained that participation in industrial action was not an "activity" within section 146. The Secretary of State intervened and appealed the Employment Appeal Tribunal decision.

Procedural history. The Employment Tribunal (EJ Franey) determined as a preliminary issue that section 146 does not, as a matter of domestic law, protect participation in industrial action but concluded that Article 11 ECHR required greater protection; the EJ declined to read section 146 down under section 3 HRA. The EAT (Choudhury J) allowed the claimant's appeal and read section 146 so as to extend protection to participation in lawful industrial action. The Secretary of State appealed to the Court of Appeal.

Nature of the claim/application. The claimant sought relief for detriment under section 146 TULRCA on the basis that suspension was for the sole or main purpose of preventing or deterring trade union activities, including participation in industrial action. The question before the Court of Appeal was whether a worker suspended and subject to disciplinary action for participating in union-organised industrial action could potentially bring a claim under section 146(1)(b).

Issues framed by the court. (i) statutory construction: whether "activities of an independent trade union" in section 146 includes participation in industrial action; (ii) whether Article 11 ECHR and the Strasbourg jurisprudence impose a positive obligation on the State to protect workers from detriments short of dismissal imposed by private employers for participation in lawful industrial action; (iii) if so, whether section 146 can be read down under section 3 HRA to provide that protection or whether a declaration of incompatibility under section 4 HRA is appropriate.

Reasoning and conclusions. The court held that industrial action is addressed in Part V of TULRCA and ordinary rules of construction therefore exclude participation in industrial action from section 146, a view reinforced by the difficulty of treating industrial action as occurring at an "appropriate time" within the existing definition. The Court accepted that Strasbourg authorities establish robust protection for participation in lawful, trade union-sanctioned industrial action and that a State may have positive obligations where domestic law affords no protection, particularly where sanctions strike at the core of trade union activity. Nonetheless, the court concluded that there were multiple, complex policy questions about the scope of protection (for example, whether protection should be limited to protected/official action, and how long protection should last) and that reading section 146 down to cover industrial action would amount to impermissible judicial legislation. The court also declined to make a declaration of incompatibility under section 4 HRA because the issue arises from a legislative lacuna and the necessary policy choices are for Parliament.

This is an appeal which the Court of Appeal allowed. The court held that, as a matter of ordinary statutory interpretation, section 146 TULRCA does not extend to participation in or organising industrial action because industrial action is governed by Part V and other trade union activities by Part III. Although the court accepted that, in some circumstances, the United Kingdom could be in breach of its positive obligations under Article 11 ECHR where no protection exists for detriments short of dismissal that strike at the core of union activity, it found that it would be impermissible under section 3 HRA to read new protection into section 146 because doing so would amount to judicial legislation and effect substantial policy change. The court also refused to make a declaration of incompatibility under section 4 HRA, leaving any remedial or legislative response to Parliament.

Employment Tribunal (preliminary issue determined by Employment Judge Franey) UKEAT/0196/20/JOJ -> Employment Appeal Tribunal (Choudhury J) allowed claimant's appeal (judgment 2 June 2021) -> Court of Appeal ([2022] EWCA Civ 379) allowed Secretary of State's appeal and restored the Employment Tribunal decision.