Case study: Mercer v Alternative Future Group Ltd

The Supreme Court has held that s146 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA) does not protect workers who partake in strike action from detriment short of dismissal in the case of Mercer v Alternative Future Group Ltd.

The facts of Mercer v Alternative Future Group Ltd

The claimant was a union representative (UNISON) and employee (Support Worker) of the respondent (a care service provider). Following a dispute regarding payment for sleep in shifts, she went on to organise lawful strike action, discussed the strike with the media, and indicated that she intended to partake in the strike. The claimant was suspended during the strike action on the basis that she had not attended shifts on two occasions without permission and had spoken to the media without authorisation. She received normal pay during her suspension but did not receive any payment in respect of the overtime she would have usually worked.

Employment Tribunal claim

S146 of TULRCA protects workers and employees from detriment for taking part in “trade union activities”. The claimant therefore brought a claim under s146 TULRCA claiming that she had been subjected to a detriment short of dismissal for participating in industrial action. She claimed that this was contrary to s146 TULCRA and Article 11 of the European Convention on Human Rights (ECHR).

The claim was dismissed, and the ET held that taking part in “trade union activities” did not include preparing for or participating in industrial action. The ET concluded that this lack of protection from detriment was contrary to Article 11 ECHR which provides a right to freedom of assembly and the right of employees to form and join trade unions for the protection of their interests. In its view, it was not possible to interpret s146 TULCRA in a way that was compatible with Article 11.

Employment Appeal Tribunal

The claimant raised an appeal on the grounds that the ET failed to consider the duty under s3 of the Human Rights Act 1998 (HRA). The EAT held that the ET was wrong to find that it was not possible to read s146 TULCRA as being compatible, and that s146 TULCRA should be read to include participation in industrial action.

Court of Appeal

The Secretary of State (as intervener) raised an appeal.

The appeal was allowed, and the decision reached by the ET was restored. The CoA held that s146 TULCRA does not provide protection against detriment short of dismissal for taking part in or organising industrial action and may put the UK in breach of Article 11 ECHR.

Supreme Court

The claimant appealed to the Supreme Court on the grounds that:

  • the UK was in breach of its duty under Article 11 ECHR
  • the CoA had erred in finding that a compliant construction of s146 TULCRA was not possible under s3 HRA
  • and the CoA erred in refusing to grant a declaration of incompatibility

The SC agreed with the CoA that s146 TULCRA does not provide protection against detriment short of dismissal for taking part in or organising industrial action, therefore the claim could not be brought under s146 TULCRA. Consequently, the SC found that the legislation was incompatible with Article 11 ECHR and cannot be read as compatible. The SC made a declaration of incompatibility under s4 HRA, as s146 TULCRA fails to provide any protection against detriments short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.

What will happen next?

The ruling of incompatibility does not change the law or affect the validity or continuing operation of s146 TULCRA. Parliament now has the discretion to consider amending TULCRA to be compatible with ECHR, but it is not automatically required to take action. It is possible that if Labour win the next election, they may be more likely to note the SC judgment and make amends to the TULCRA to make it compatible with the ECHR. If s146 TULCRA is not amended, then Brexit does not preclude employees’ rights to bring claims before the ECHR instead of in the domestic Tribunals/Courts.

What are the practical implications?

Whilst the domestic law does not currently protect workers against action short of dismissal for participation in lawful strike action, employers still need to be aware of the risk of human rights claims before the ECHR.

Employers should therefore be aware of the following points:

  • employees have a right to strike
  • employees have protection from dismissal for participating in or organising industrial action
  • employees do not have any domestic protection for detriment short of dismissal as a result of industrial action under TULCRA.
  • nevertheless, to minimise potential human rights claims, employers should not take any further action (or inaction) causing an employee to be treated detrimentally for participating in industrial action

Employers should also look out for potential future proposals to amend the domestic legislation in this area.

Contact us

Ella Maher is a trainee solicitor in our employment law team. If you have any questions or concerns related to the points raised in this article, please get in touch.





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