Trade union detriments incompatible with human rights

In the recent case of Mercer v Alternative Fuel Group (1) Secretary of State for Business and Trade (2), the Supreme Court was asked to consider whether section 146 Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) protected striking workers from detriment short of dismissal.

The claimant was a UNISON workplace representative and an employee of the respondent. The respondent suspended her on basic pay (resulting in a loss of overtime pay) and gave her a written warning after she was involved in planning and taking part in lawful strike action. She brought a claim under section 146 TULRCA, claiming detriment short of dismissal for organising and participating in strike action.

The Supreme Court held that:

• section 146 TULRCA did not provide protection for detriment short of dismissal for taking part in or organising industrial action. The claimant could not bring her claim under section 146

• this lack of protection encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of the European Convention on Human Rights  (the right to freedom of association)

• it wasn’t possible to interpret section 146 in a way which was compatible with Article 11

• this meant that UK law was incompatible with Article 11

The Supreme Court exercised its discretion to issue a declaration of incompatibility, holding that ‘section 146 is incompatible with article 11 of the European Convention on Human Rights ’. It will now be down to Parliament to consider legislative amendments to bring the UK into line in this area.