Secretary of State for Business and Trade v Mercer

The right to strike is protected by article 11 of the European Convention on Human Rights, although it is neither a core nor an absolute right. The state has a wide margin when regulating relations between private employers and workers. Article 11 does not require universal immunity from every detriment imposed for lawful industrial action.

Nevertheless, a complete absence of protection against sanctions short of dismissal nullifies the protected right and breaches the state’s positive obligation. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 cannot be interpreted compatibly under section 3 of the Human Rights Act 1998. Doing so would contradict a fundamental feature of the statutory scheme and require policy choices reserved to Parliament. A declaration of incompatibility is therefore appropriate.

A support worker and UNISON representative participated in lawful industrial action and was suspended. Her employment tribunal claim alleged that the suspension was intended to deter or penalise her participation. The preliminary issue proceeded on assumed facts, without findings about the employer’s motive, reasonableness or proportionality.

The Employment Tribunal held that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not protect participation in industrial action and could not be read compatibly. The Employment Appeal Tribunal reversed that decision and read an additional limb into section 146(2): [2021] ICR 1598. The Court of Appeal allowed the Secretary of State’s appeal, holding that such an interpretation would constitute judicial legislation and declining a declaration of incompatibility: [2022] EWCA Civ 379, [2022] ICR 1034.

The Supreme Court considered the protection required by article 11, the interpretative power under section 3 of the Human Rights Act 1998, and whether section 146 should be declared incompatible under section 4.

1. Disposition. The appeal was allowed to the extent that the court unanimously declared section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 incompatible with article 11 of the European Convention on Human Rights. Lady Simler gave the judgment, with which Lord Lloyd-Jones, Lord Hamblen, Lord Burrows and Lord Richards agreed.

2. On ordinary statutory construction, section 146 does not protect workers from detriment short of dismissal for participating in industrial action. The requirement that union activities occur at an “appropriate time” confines protection to activities outside working hours or undertaken during working hours with the employer’s consent. Reading section 146 with its sibling provision, section 152, and the distinct dismissal regime in sections 237–238A confirms that Parliament treated participation in industrial action separately from protected trade union activities.

3. Strike action is protected by article 11, but Strasbourg authority has not classified it as a core or essential element of trade union freedom. It is not absolute. Where the state regulates relations between private employers and workers, it has a wide margin because a fair balance must be struck between labour, management and wider interests. Article 11 therefore does not require universal protection against every detriment, however slight, imposed for participation in lawful industrial action.

4. That margin is not unlimited. Domestic law provided no real or effective protection against any sanction short of dismissal imposed for participating in lawful industrial action. An employer’s ability to impose any such sanction may dissolve the practical right to strike. No pressing social need or legitimate aim justified that complete absence of protection. The statutory scheme therefore failed to secure effective enjoyment of the article 11 right, including in private employment.

5. Section 3 of the Human Rights Act 1998 could not cure the incompatibility. The proposed reading would require choices about the kinds and duration of protection, the treatment of workers who are not employees, and the relationship with the limited dismissal protections. It would also contradict the legislation’s fundamental distinction between industrial action and trade union activities undertaken at an appropriate time. That would be judicial legislation rather than interpretation.

6. Section 146 was an identifiable incompatible provision because it was the sole provision limiting the common law in this context and implicitly legitimised sanctions short of dismissal. The available legislative choices supported, rather than precluded, a declaration under section 4. Parliament remains free to decide whether and how to legislate.

1. United Kingdom Supreme Court: Allowed the worker’s appeal to the extent of declaring section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 incompatible with article 11: [2024] UKSC 12.
2. Court of Appeal: Allowed the Secretary of State’s appeal, held that a Convention-compatible interpretation would be impermissible judicial legislation, and declined a declaration of incompatibility: [2022] EWCA Civ 379, [2022] ICR 1034.
3. Employment Appeal Tribunal: Allowed the worker’s appeal and read an additional limb into section 146(2) to protect participation in industrial action during working hours: [2021] ICR 1598.
4. Employment Tribunal: Dismissed the part of the complaint based on participation in lawful strike action, holding that section 146 neither extended to striking nor admitted a compatible interpretation.