Detriment in respect of industrial action: Orthodoxy restored by the Court of Appeal in Mercer

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) includes certain protections against dismissal , but no express protections against detriment short of dismissal, for workers taking part in industrial action. There is protection against detriment on grounds of trade union membership or activities (section 146 TULRCA) but the courts have held that this does not extend to industrial action. In a previous issue of IR Guru we reported on the cases of Mercer v Alternative Future Group Limited and Ryanair DAC v Morais and others in which the EAT held that section 146 TULRCA was in breach of Article 11 of the European Convention on Human Rights. The EAT held that s.146 should be construed so as to provide protection in respect of industrial action.

Although the employer in Mercer did not seek to appeal the EAT's decision, the Secretary of State, as intervener, applied for and was given permission to appeal.

The Court of Appeal has now handed down judgment in the appeal, overturning the EAT's decision and restoring the position that s.146 TULRCA does not cover detriment on grounds of taking industrial action.

The Court of Appeal considered that when s.146 is viewed as part of TULRCA as a whole, industrial action is not included within the phrase activities of an independent trade union. Industrial action is dealt with in Part V of TULRCA whereas all other trade union activities are covered in Part III.

It was common ground between the parties that if an employee is on strike he or she does not have to be paid for the time whilst on strike. The claimant contended that every detriment part from no work, no pay imposed in response to industrial action is incompatible with Art 11; the Secretary of State argued that no detriment in a private sector case can ever be incompatible with Art 11.

The Court disagreed with both these positions and instead concluded that the failure to give legislative protection against any sanction short of dismissal for official industrial action against the employees who take it may put the UK in breach of Art 11, even in the case of a private sector employer, if the sanction is one which strikes at the core of trade union activity. However, the Court held that that could not be resolved by reading down s.146 as there was more than one solution to the gap in the legislation and a number of policy questions.

The first question is whether protection against detriment should be given to all industrial action or only official industrial action. The next question is whether the protection against detriment short of dismissal should extend to long-running official action (as protection against dismissal expires after 12 weeks). Finally, the Court considered it far from obvious that Art 11 requires protection to be given against every form of detriment.

The Court concluded that these issues of policy were best left to Parliament. The Court also declined to make a declaration of incompatibility on the basis that it would not be appropriate where there is a lacuna in the law rather than a specific statutory provision which is incompatible and the legislative choices are far from being binary questions.