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British trade-union law ‘in breach of ECHR’

Britain’s Supreme Court has found that a section of 1992 legislation on trade unions is incompatible with the European Convention on Human Rights (ECHR).

According to the Law Society Gazette of England and Wales, five judges unanimously decided to allow an appeal in the case of Fiona Mercer, a support worker in the care sector and a workplace representative of the Unison union.
Mercer had been involved in planning for, and took part in, strike action.

She was suspended by her employer Alternative Futures Group Ltd (AFG), receiving normal pay, but nothing for the overtime she would have normally worked.

Strike action

The effect of her suspension, “if not the purpose … was also to remove her from the workplace while the industrial action was in progress,” the judgment states.

Mercer took her case to an employment tribunal, arguing that the decision to suspend her was taken for the sole or main purpose of preventing or deterring her from taking part in an independent trade union’s activity.

AFG argued that it had suspended her because she had abandoned her shift and spoken to the press without permission.

The tribunal held, as a matter of domestic law, that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not extend protection to participation in lawful strike action.

The tribunal’s decision was reversed by the Employment Appeal Tribunal.
The British Government successfully appealed, and Mercer brought the case before the Supreme Court.

State’s obligations

The Supreme Court judgment states: “There may be circumstances where it is permissible to impose a detriment for participating in lawful strike action where employees have necessarily acted in breach of contract, particularly where the manner of the breach is harmful or disruptive.

“However, it does not follow that in a private-sector case where sanctions short of dismissal are imposed to deter lawful strike action, the State has no positive obligations at all.”

Delivering judgment, Lady Simler said that the section of the 1992 act was incompatible with article 11 of the ECHR, which covers the freedom of assembly and association, adding that the case resulted from “a lacuna” in domestic law generally.

She added: “I am persuaded that section 146 is the only provision which limits the common law in this context and has the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the UK in breach of article 11.”