Secretary of State for Business and Trade v Mercer

The Supreme Court held that, as conventionally construed, section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) excludes protection from detriment short of dismissal for participation in lawful industrial action, but that this exclusion in practice produces a breach of the United Kingdom's positive obligations under article 11 of the European Convention on Human Rights. Section 3 of the Human Rights Act 1998 cannot be used to read in a solution compatible with article 11 because doing so would contradict fundamental features of the statutory scheme and involve impermissible judicial legislation. The court therefore granted a declaration of incompatibility under section 4 HRA in respect of section 146 insofar as it fails to provide any protection against sanctions short of dismissal intended to deter or penalise participation in lawful strike action.

Background and facts:

• Fiona Mercer, a UNISON workplace representative employed by Alternative Futures Group Ltd, took part in lawful, union-sanctioned strike action. She was suspended and lost overtime pay; on assumed facts the suspension was taken to deter participation in the industrial action.
• The claim was brought under section 146 TULRCA (detriment on grounds related to union membership or activities) arguing the suspension was for the sole or main purpose of preventing or deterring trade union activities.

Procedural history:

• Employment Tribunal (EJ Franey) dismissed that part of the complaint based on participation in strike action (4 May 2020).
• Employment Appeal Tribunal (Choudhury J) allowed the appeal and read words into section 146(2) so that protected industrial action in working hours was covered ([2021] ICR 1598).
• Court of Appeal allowed the Secretary of State's appeal and held a compliant construction under section 3 HRA was not possible and refused a declaration of incompatibility ([2022] EWCA Civ 379).
• The matter proceeded to the Supreme Court on the three issues: (i) scope of article 11 positive obligations in this context, (ii) whether section 3 HRA permits a Convention-compliant reading of section 146, and (iii) whether a section 4 declaration should be made if a compliant reading is impossible.

Issues framed by the court:

1. Does article 11 require protection against detriments, short of dismissal, imposed to deter or penalise participation in lawful industrial action?
2. Can section 146 of TULRCA be read compatibly with article 11 by virtue of section 3 HRA?
3. If not, should the court make a declaration of incompatibility under section 4 HRA?

Reasoning and conclusion:

• On ordinary domestic construction and legislative history (including Drew and the long legislative development of TULRCA), section 146 excludes industrial action because "an appropriate time" is defined to be outside working hours or within working hours with employer consent; Part V provides a distinct, limited regime for protection in relation to industrial action. That distinction is entrenched and deliberate.
• Strasbourg jurisprudence establishes that the right to strike is protected by article 11 but is not necessarily an absolute or always "core" right; states enjoy a margin of appreciation in regulating the right and a wider margin when the obligation is positive and concerns private employers. Nonetheless, the absence of any domestic protection against detriments short of dismissal can leave no effective remedy and may breach article 11 in some private-sector cases.
• The court concluded that article 11 does not require absolute protection against every form of detriment in every private-sector case but does require some effective protection; the complete absence of protection in section 146 in all circumstances can amount to a breach of article 11.
• Section 3 HRA cannot be used here to read in protection for strike-related detriments without contradicting fundamental features of TULRCA and making substantive policy choices properly for Parliament.
• Because the incompatibility arises from a specific statutory provision that operates to exclude any domestic remedy in respect of detriments short of dismissal, the court considered a section 4 declaration appropriate and made one: section 146 is incompatible with article 11 insofar as it fails to provide protection against sanctions short of dismissal intended to deter or penalise participation in lawful strike action.

Relief sought: interpretation of section 146 to include protection for participation in protected industrial action; alternatively a declaration of incompatibility under section 4 HRA.

Appeal allowed. The court held that section 146 TULRCA, as conventionally interpreted, excludes protection against detriments short of dismissal for participation in lawful industrial action but that this exclusion can put the United Kingdom in breach of article 11 ECHR. A Convention-compatible reading under section 3 HRA was not possible because it would contradict a fundamental feature of the statutory scheme and amount to judicial legislation. Accordingly, the court made a declaration of incompatibility under section 4 HRA in respect of section 146 insofar as it fails to provide protection against sanctions short of dismissal intended to deter or penalise participation in lawful trade union strike action.

Employment Tribunal dismissed the section 146 claim (4 May 2020). Employment Appeal Tribunal allowed the appeal and read-in protection for industrial action ([2021] ICR 1598). Court of Appeal allowed the Secretary of State's appeal and held a compatible construction under section 3 HRA was not possible and refused a declaration of incompatibility ([2022] EWCA Civ 379). The Supreme Court allowed the appeal and made a declaration of incompatibility ([2024] UKSC 12).