The Employment Appeal Tribunal on 2nd June 2021 made its judgement in F Mercer v Alternative Future Group Ltd. Its decision has effectively extended the protection available to striking employees. The Employment Appeal Tribunal found that S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 should be interpreted to include involvement in industrial action.
The claimant was employed as a support worker by the Alternative Future Group and was suspended for organising and participating in a strike. She was a Unison workplace representative. The union called a strike as the organisation had cut sleep in shift allowances. The claimant was given a written warning for not working her shift. The claimant brought a claim based on the employer imposing detrimental treatment due to her suspension because of her strike action and this she argued breached S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992. S.146 provides protection against detrimental treatment for participation in union activities. Previous Employment Tribunals had judged that S.152 did not apply to strike action and protected against dismissal rather than detriment because of participation in union activities.
Domestic Law
In the case of F Mercer v Alternative Future Group Ltd the Employment Tribunal had to take into account if these previous decisions were consistent with S. 3 of the Human Rights Act 1998. This legislation had to interpret domestic law in line with Article 11 of the European Convention on Human Rights, regarding the right to freedom of association and assembly. The Employment Tribunal and the Employment Appeals Tribunal found the S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 was not consistent with Article 11 of the European Convention on Human Rights as restriction on the right to strike would be a breach. The Employment Appeal Tribunal said the domestic law must follow the spirit of the European Convention on Human Rights. Nothing in the legislation precluded protection against detriment if an employee takes part in union action.
HR practitioners and employers should now be very mindful about terminating employees in the above circumstance and exercise caution when disciplining employees for participation in union activity. Sanctions against an employee however trivial could be seen as deterring and restricting participation in union activities including strike action. This article as a guideline only and of you need specific legal advice please speak to the Quest Advice Line.
