Industrial Action - the law finally flexing some muscle?

?

The Supreme Court has today clarified the ambit of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 – the legislation which is intended to afford protection to workers who embark upon lawful industrial action.

?

In Secretary of State for Business and Trade v Mercer [2024] UKSC 12 the employee was a UNISON member whose care-sector employer had suspended her. At least one effect of the suspension was to deprive Ms Mercer of the opportunity to earn additional sums for overtime. For the purposes of the appeal, the Supreme Court took her position at face value and assumed that "the effect, if not the purpose, of the suspension was also to remove her from the workplace while industrial action was in progress" - industrial action which would have coincided with her regular hours.

The Supreme Court has decided that:

?

• It remains unlawful for an employer to subject workers to detriments (short of dismissal) to prevent, deter or punish the worker for taking part in lawful industrial action outside their working hours.

?

?

• Section 146 no longer prohibits employers from subjecting workers to detriments to prevent, deter or punish the worker for taking part in lawful industrial action during their working hours.

?

?

• The TULRCA provision is however incompatible with the Human Rights Act 1998 and in particular the right to freedom of assembly. As such, it will now be for Parliament to decide afresh whether to remedy any perceived shortcomings in the legislative protection available to workers.

?

Importantly, the Supreme Court has reversed the position of the Court of Appeal - and, before that, the Employment Appeal Tribunal. Until today, Employment Tribunals had been required to interpret s. 146 artificially, in such a way that afforded detriment protection to workers who had joined (or were considering joining) strikes during their normal working hours. This was particularly relevant because a successful claim can give rise to awards for compensation for injury to feelings. In Ms Mercer's case, she would have almost certainly recovered financial loss on top to reflect her inability to earn overtime during the suspension.

Happily, strike action has been relatively calm so far this year compared to 2023. Only yesterday, the Office of National Statistics reported that 165 working days were lost due to strike action in January 2024, reducing to 106 days in February 2024 (compared to a loss of 210 days in January 2023 and 332 days in February 2023). Nevertheless, the Supreme Court’s decision is likely to provide some comfort and potential flexibility to our clients - particularly those who operate in the care sector, who have to balance the threat of repeated strike action with increasing costs. ?

?

The case also serves as a useful reminder to Tribunals and Courts that they cannot always re-write legislation to produce outcomes that Parliament had never intended.

?

Employers needing to respond to threats of industrial action, or requiring expert help with any other employment matters, may contact me or my excellent colleague Elaine Abbs .