Supreme Court identifies gap in trade union law and the protection of striking employees

Key points

• Employers can still punish employees who engage in lawful strike action provided the punishment or detriment falls short of dismissal. These punishments may be warnings, withdrawal of benefits etc. This is a gap in our UK legislation and it will need Parliament to plug this gap. 
• Employers can still ‘punish’ employees who engage in lawful strike action provided the detriment falls short of dismissal.
• Employers cannot dismiss employees who engage in trade union activities (outside of working hours) or official industrial action. Neither can they punish employees who engage in trade union activities (outside of working hours). 

Legal background

S146 TULRCA is the backdrop to these two cases. Under s146, if an employee suffers a detriment because of an act or a failure to act by their employer and the main or sole reason for that act was to prevent the employee from participating in trade union activities at an appropriate time, then the employees are entitled to compensation. The definition of appropriate time is a time outside working hours or within working hours and with the consent of the employer.

Secretary of State for Business and Trade v Mercer

Ms Mercer was a support worker at a social care charity and was a trade union representative for UNISON. In early 2019, there was a dispute regarding payment for sleep-in shifts and UNISON called a series of lawful strikes. Ms Mercer participated, publicised and organised these strikes and as a result, she was suspended. During this period of suspension, she received only her basic salary and could not earn any additional money from overtime or participate in industrial action. She brought a claim at the tribunal under s146 TULRCA, arguing that her employer had subjected her to a detriment and the main purpose of this detriment was her involvement in trade union activities – this was in breach of s146.

The tribunal dismissed her claim, stating that as her claim was based on participation in industrial action, it was not protected under s146. The tribunal recognised that there was a gap in the law as employees were not protected from any detriment short of dismissal for participating in industrial action. This was in breach of Article 11 of the European Convention on Human Rights (everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests) and would not interpret s146 to bridge this gap. The Employment Appeal Tribunal (EAT) however, did bridge the gap determined to interpret s146 to include this missing protection. The Government intervened at this point and successfully appealed the case to the Court of Appeal. This court rejected the EAT’s interpretation of s146. It noted that there was a potential gap in the existing law but highlighted that this was for Parliament and not the courts to remedy.

Supreme Court decision

The Supreme Court made a declaration of incompatibility in respect of s146. This means that the failure of s146 to protect employees from any detriment should they choose to participate in lawful industrial action does not provide the protection that Article 11 requires. But importantly, it does not change the law as it currently stands. Only Parliament can do that. 

Wallace v Wiltshire Council

This case, also about s146, managed to sidestep the Mercer issue successfully and produce an interesting result. It’s only a first-instance case so it does not have to be followed but it’s an interesting partner to the Mercer case. 

Case overview

Wiltshire Council informed its recognised unions in November 2021 of its intention to consult on reducing staffing costs. There then followed a period of often heated meetings, agreements, disagreements about those agreements and announcements to the press. Much of the dispute centred around a group of 23 traffic wardens and the council’s proposals to remove the plussage payments they received for working unsociable hours. By October 2022, UNISON and UNITE had agreed to the council’s proposals but the GMB union did not. It announced that it would ballot its members on industrial action. This followed a radio interview a union official gave accusing the council of reneging on various promises and referring to a 10% pay cut.

Mr Herbert, the chief executive of the council sent an email personally from him to the 23 traffic wardens (21 of whom were GMB members) to set the record straight concerning the pay negotiations; he alleged that he wanted the employees to have an accurate picture of the pay deal before they voted for strike action.

The employees found this intimidating and one noted that it felt like the email ‘put a target on their backs’. The employment tribunal agreed and the council was found to be in breach of s146; the email had caused the employee’s distress which was a detriment and the ballot for strike action was the main or sole reason for the distress. Key parts of the email which convinced the tribunal were as follows; paragraph one making it clear the email was in light of the union’s decision to carry out a strike ballot; confirming that in the absence of an agreement with GMB and if a strike went ahead, the current council proposal may be moved off the table; and a last paragraph stating ‘I would ask you to please consider carefully whether further strike action will support this approach’.

Where does that leave us?

• The Supreme Court judgment does not change the law; however, employers who continue to carry out practices such as removing discretionary bonuses for striking employees or financially rewarding non-striking employees could find their practices vulnerable to legal challenges. 
• Whilst it is unlikely that the current Government will make immediate changes to TULRCA, the likelihood of a Labour government taking prompt action is high. Again, we would advise addressing any practices which might currently be lawful and addressing how to change them to be ready for new legislation to enshrine the Article 11 right in UK law. 
• Be wary when contacting employees during a dispute. Stick to information sharing only and remember while you may see your stance as neutral, there is rarely such a thing in ongoing disputes. The tribunal will look at what the recipients felt on receipt and whether their reaction is objectively reasonable not what the employer wanted to convey.
• If organisations do wish to make contact, send a generic email to all employees regardless of which union they belong to and avoid personal emails from people who are key players in the organisation. The latter can increase the sense of pressure and feeling of coercion. (Note this case was only concerned with s146 TULRCA and not concerned with inducements as outlined in s145 TULRCA).

For more information or clarification on these cases and their ramifications, please contact Matthew Wort or a member of our employment and pensions team.

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