Supreme Court rules UK law on industrial action is incompatible with workers’ human rights

It is well known that workers have long had protection from being dismissed for taking part in lawful industrial action, however current trade union legislation in the UK does not provide an equivalent protection against sanctions short of dismissal. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects workers from detriment for taking part in trade union activities more generally, but not for participating in lawful strike action.

This means in practice that an employer could lawfully choose to impose any sanction whatsoever, so long as it falls short of dismissal, on workers participating in lawful strike action.

The fact there is no protection from detriment for taking part in lawful strike action has been held by the Supreme Court in Mercer to be incompatible with the European Convention on Human Rights (ECHR), specifically the Article 11 right to freedom of assembly and to freedom of association (sometimes referred to as the ‘right to strike’). The Supreme Court went so far as to say Section 146 nullified the right to strike, as if an employee is unable to strike without exposing themselves to detrimental treatment, Section 146 both encourages and legitimises unfair and unreasonable conduct by employers.

The Supreme Court considered that Section 146 TULRCA 1992 could not be ‘read down’ under Section 3 of the Human Rights Act 1997 (HRA) or interpreted in a manner compatible with the ECHR, as this would require the court to make policy choices amounting to impermissible judicial legislation. It therefore made a declaration of incompatibility with the ECHR, under Section 4 HRA 1998.

We now await a decision from parliament as to whether, and if so how, to legislate in this area so as to bring our trade union legislation into line with workers’ human rights under Article 11 ECHR.

Background and legislation

Ms Mercer was a workplace union representative, and was involved in organising and planning a number of strikes, which she also took part in herself. She was suspended by her employer (Alternative Futures Group) for abandoning her shift and speaking to the press without permission. Ms Mercer brought a claim in the Employment Tribunal (ET) under Section 146 TULRCA 1992, which protects a worker from any detriment that has the purpose of preventing or deterring them from participating in trade union activities, or penalising them for doing so:

Section 146: Detriment on grounds related to union membership or activities

1. ‘A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—

…(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so…

      2. In subsection (1) ‘an appropriate time’ means—

          (a) a time outside the worker’s working hours, or

          (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his                   employer, it is permissible for him to take part in the activities of a trade union…’

The ET at first instance found Ms Mercer could not bring a claim under Section 146, as ‘taking part in the activities of [a] trade union at an appropriate time’ did not extend to taking part in industrial action itself. Industrial action will rarely, if ever, take place outside working hours or with the employer’s consent, therefore it is not activity that can take place ‘at an appropriate time', and is not covered by Section 146 TULRCA 1992. Trade union activities, distinct from industrial action, are purposefully separated out in different parts of TULRCA 1992, therefore Section 146 could not be interpreted differently so as to conform with Article 11 ECHR:

Article 11

1. ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.’

The Employment Appeal Tribunal (EAT) granted permission for the Secretary of State to intervene in the proceedings, allowed the appeal and held that the failure within TULRCA 1992 to provide protection against detrimental action short of dismissal for workers taking part in industrial action was a breach of Article 11 ECHR. However, the EAT held it was possible to construe Section 146 TULRCA 1992 in a way that is compatible with Article 11, by inserting additional wording, pursuant to Section 3 HRA 1998:

Interpretation of legislation

1. ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights…’

The Court of Appeal (CA) then allowed the Secretary of State’s further appeal, and restored the ET’s decision. The CA considered that Section 146 TULRCA 1992 was not necessarily in breach of Article 11 ECHR (although it could be), and in any event that it was not appropriate to interpret Section 146’s compatibly by inserting additional wording. Whilst Section 3 HRA 1998 requires courts to interpret primary legislation in a manner compatible with the ECHR, it does not enable the court to change the substance of a provision, or to interpret it compatibly if the legislation itself makes it impossible to do so. The CA, though, declined to make a Section 4 declaration of incompatibility on the grounds that there was a gap in the law, rather than a specific provision which was incompatible with human rights:

Declaration of incompatibility

1. ‘Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
2. If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility…
3. A declaration under this section…—
4. Does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
5. Is not binding on the parties to the proceedings in which it is made.’

Supreme Court decision

The Supreme Court (SC) unanimously allowed Ms Mercer’s appeal, and held that:

• Section 146 TULRCA 1992 does not provide protection from detrimental action short of dismissal for taking part in strike action;
• That lack of protection amounts to a breach of Article 11 ECHR;
• It is not possible to ‘read down’ Section 146 to make it compliant with Article 11; and
• It was not inappropriate to make a declaration of incompatibility.

Section 146 interpretation

The SC held that Section 146 TULRCA 1992 does not provide protection for detriment short of dismissal to workers participating in lawful strike action, because the words ‘at the appropriate time’ mean the protection is limited to activities outside working hours (or with the employer’s consent) and/or done at a time that is not inconsistent with the worker’s job responsibilities. This could not reasonably be interpreted to include industrial action.

Breach of the ECHR

The ‘right to strike’ is protected under Article 11, though the SC noted Article 11 is not a core nor an absolute right. Member States to the ECHR benefit from a ‘wide margin of appreciation’, because of the sensitive social and political issues involved in balancing the rights of workers and their employers. As such, the UK is not required by Article 11 ECHR to provide universal protection to all workers against any detriment intended to dissuade or penalise them from participating in a lawful strike, and does not have a proactive obligation to protect the right to strike. However, the legislative scheme must strike a fair balance between the competing interests of workers and their employers, and any restriction on Article 11 must be justified.

The SC held that the absence of protection from disciplinary sanction short of dismissal nullifies the right to strike, as employees are unable to strike without exposing themselves to disproportionately detrimental treatment. Section 146 therefore ‘both encourages and legitimatises unfair and unreasonable conduct by employers’, which does not strike the required fair balance. The UK is therefore in breach of its obligations under Article 11.

Interpretation under Section 3 HRA 1998

The SC agreed with the CA that there was no possible interpretation of Section 146 that it could adopt under Section 3 HRA 1998 that would avoid it having to make a series of policy choices with potentially far-reaching practical ramifications, and would not fundamentally contradict the wording of TULRCA 1992 taken as a whole. This would amount to impermissible judicial legislation, rather than interpretation.

Declaration of incompatibility

However, the SC disagreed with the CA’s reasoning that it couldn’t make a Section 4 declaration because the incompatibility arose from a lacuna in domestic law rather than a specific provision in primary legislation. Section 146 was the only possible route for Ms Mercer to seek to enforce her Article 11 right in the domestic courts, and that was blocked by the necessary interpretation of Section 146, because it meant she was at risk of sanction for exercising her Article 11 right.

The SC considered this was not a case in which it would be inappropriate to exercise its discretion to declare Section 146 TULRCA 1992 incompatible with the UK’s obligations under the ECHR. Those policy choices required to determine how to strike a fair balance between the competing interests at stake are matters for parliament to address.

The SC therefore upheld the appeal, and issued a declaration of incompatibility.

Future implications

It will now be for parliament to legislate to ensure UK law is compliant with Article 11. A failure to do so could result in further litigation against the State by Ms Mercer to the European Court of Human Rights in Strasbourg, under Section 4(6)(b) HRA 1998. In reality, a declaration of incompatibility has on every occasion resulted in an amendment to the non-compliant legislation in due course. However, it is unlikely we will see any change in the law prior to the general election later this year.

Labour have already promised a sweeping reform to overhaul and modernise the law on industrial action, giving wider legal protection to trade union members, should they win the election. If they do, we will almost certainly see an amendment to TULRCA 1992 to provide some level of protection for detriment short of dismissal for striking workers within those reforms. Whoever the incoming government is, this will likely be high on their agenda given the recent prolific industrial action being taken, and with Mercer being the first case where a court has declared legislation to be incompatible with the Article 11 ‘right to strike’.

In the meantime, unless and until there is any amendment to the legislation, Section 146 remains valid and enforceable. A Section 4 declaration of incompatibility does not affect the validity, continuing operation or enforcement of the relevant provision. However, employers should take care not to subject workers who participate in industrial action to detriment (such as withdrawing discretionary benefits or imposing disciplinary sanctions), as this could lead to a significant risk of litigation (as well as obvious reputational damage). Legal advice to workers and their employers alike should bear this in mind. Though do note that the withholding of basic pay during strike action remains permitted, because it is not the imposition of a sanction but, rather, there is no right to pay in circumstances where a worker is acting in breach of contract by withdrawing labour.

The decision is a significant win for trade unions, lawful industrial action and those workers who wish to take part in it. It gives those workers the confidence that they can take part without being disciplined by their employer for doing so, and curtails the ability of employers to disincentivise participation.

In the likely event parliament addresses this incompatibility with Article 11 through new or amended legislation, it remains to be seen how they will do so, and to what extent. It is unlikely TULRCA 1992 will be amended to protect all detriments in their entirety (e.g. the withdrawal of discretionary benefits), but it is foreseeable that it will protect against certain disciplinary action, such as suspensions and formal warnings. We also await whether any amendment will extend protection throughout the duration of the industrial action, or (more likely) whether it will be limited to the first 12 weeks, as is the case for automatic unfair dismissal protection for striking workers. Any future amendment to the legislation will almost certainly not be retrospective, and so will apply only to future claims and not existing ones.

More broadly, going against the grain of UK court judgments which traditionally seek to avoid recognising a general ‘right to strike’, the SC referred to a ‘right to strike’ under Article 11 ECHR on 18 separate occasions in this judgment (although noting it is neither absolute nor unlimited). It is therefore quite possible the judgment will usher in more rapid growth of human rights-focussed challenges to our trade union law and the prescriptive statutory restrictions on industrial action.