Fiona Mercer v Alternative Future Group Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWCA Civ 379 |
| Docket Number | Case No: CA-2021-000672 (formerly A2/2021/1193) |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 379
The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Bean
and
Lord Justice Singh
Case No: CA-2021-000672 (formerly A2/2021/1193)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Choudhury
UKEAT/0196/20/JOJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Stilitz QC and Hannah Slarks (instructed by The Treasury Solicitor) for the Intervener/Appellant
Michael Ford QC and Stuart Brittenden (instructed by Unison Legal Services) for the Claimant/Respondent
Hearing date: 27 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10:00am on 24 March 2022.
This is the judgment of the court to which all of us have contributed. This appeal from a decision of Mr Justice Choudhury, President of the Employment Appeal Tribunal (“the EAT”), raises the issue whether taking part in industrial action is an activity protected by section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). It follows the determination of a preliminary issue in the Employment Tribunal which was refined to this:
“whether, in the light of articles 10 and 11 of the European Convention on Human Rights, the activities protected by section 146 extend to participation in lawful industrial action as a member of an independent trade union.”
This required the tribunals below to construe section 146 in accordance with ordinary canons of statutory construction; determine whether detriments falling short of dismissal imposed by private employers on employees can give rise to breaches of article 11 on the basis that the state has failed in its positive obligations to provide for appropriate protection; and if so whether section 146 can be interpreted in a way that provides that protection using section 3 of the Human Rights Act 1998 (“the 1998 Act”).
Part III of TULRCA concerns rights in relation to union membership and activities. Section 146 is headed “Detriment on grounds related to union membership or activities”. It provides:
“(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 –
(a) …
(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…,
and for this purpose ‘working hours’, in relation to a worker, means any time when, in accordance with his contract of employment…he is required to be at work.”
The remedy for a breach of section 146 is a complaint to an Employment Tribunal under section 147 which if established may lead to a declaration and an award of compensation.
Section 152 of TULRCA provides corresponding protection against dismissal (as opposed to detriment short of dismissal):
“(1) For the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee –
(a) …
(b) had taken part, or proposed to take part in the activities of an independent trade union at an appropriate time…”
Section 152(2) defines “an appropriate time” in a similar way to section 146(2) but as this section is concerned with employees, rather than the wider concept of “workers”, the wording of the definition of working hours is different. The parties have not suggested that these minor differences have a bearing on the issues in this appeal. A complaint of “automatic” unfair dismissal under section 152 does not require any qualifying period of service (section 154), and interim relief is available (section 161).
Part III also contains provisions dealing with time off for trade union duties and activities. Section 170 provides:
“(1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in: (a) any activities of the union, and (b) any activities in relation to which the employee is acting as a representative of the union.
(2) The right conferred by subsection (1) does not extend to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute.”
Part V of TULRCA is entitled “Industrial Action”. It sets out the conditions that a trade union must satisfy before calling industrial action to secure immunity under section 219 from civil action by the employer for torts such as inducing its members to breach their contracts of employment. Its provisions include the definition of a trade dispute, requirements about balloting the membership, the requirements for notice to be given to the employer of an intention to ballot and the result of the ballot and of proposed industrial action. An employer may seek injunctive relief in default of compliance with the statutory requirements.
Part V also contains provisions about unfair dismissal complaints where industrial action is taken. We adopt, with gratitude the “broad summary” of sections 237, 238 and 238A of TULRCA found in the judgment of EJ Franey:
35. … These provisions use the language of “official” and “unofficial” industrial action, the latter being defined by section 237(2). There is also the concept of “protected” official industrial action under section 238A. It is unnecessary to consider these definitions further since this preliminary issue was to be determined on the assumption that the industrial action was “official” and “protected”.
36. Section 237 provides that an employee dismissed whilst taking part in unofficial industrial action has no right to complain of unfair dismissal unless the reason or principal reason was one of a small number of automatically unfair reasons for dismissal (or for selection for redundancy). The reasons specified do not include dismissal for trade union activities under section 152. Section 152 protection is therefore lost whilst the employee participates in unofficial industrial action.
37. Section 238 provides that an employee dismissed whilst taking part in official industrial action has no right to pursue a claim of unfair dismissal save in two situations:
• The first is if there have been selective dismissals (i.e. other employees in the same position have not been dismissed or, if dismissed, are swiftly reengaged). If there are selective dismissals the two year qualifying period is still required.
• The second is if the reason or principal reason for dismissal (or for selection for redundancy) is one of a small number of automatically unfair reasons, in which cases no qualifying period is required. The reasons specified do not include dismissal because of trade union activities under section 152, but they do include dismissal because of taking official industrial action to which section 238A applies.
38. Section 238A applies to employees dismissed because of taking part in official industrial action. Such dismissals are automatically unfair during a protected period of 12 weeks. The two-year qualifying period does not apply. Unlike section 152 dismissals, there is no right to seek interim relief.”
The facts
Alternative Future Group Ltd (“the company”) is a health and social care charity providing a range of care services across the northwest of England. It employs over 2,500 staff. The claimant, Fiona Mercer, has been employed as a support worker by the company since 2009. At the relevant time she was a workplace representative for her trade union, UNISON.
In early 2019 there was a trade dispute regarding payments for sleep-in shifts. Having gone through the balloting and notification requirements contained in Part V of TULRCA, UNISON called a series of strikes which ran intermittently between 2 March and 14 May 2019. The company did not seek an injunction to prevent that industrial action taking place.
The claimant was involved in planning and organising the strikes. In that capacity she was interviewed by an online publication, iNews, in January 2019 and press material appeared in the Liverpool Echo in late March 2019. She also intended to participate in the strikes herself.
On 26 March 2019 the claimant was suspended. She was told this was because of allegations that she had abandoned her shift on two separate occasions without permission, and that she had spoken to the press about the strike action without prior authorisation in a way which conveyed confidential information and was considered likely to bring the organisation into disrepute. According to her claim form in the employment tribunal, during her suspension she received normal pay, but was unable to work or receive pay for the overtime which she would normally have worked. The effect, if not the purpose, of the suspension was to remove her from the premises while the industrial action was in progress.
The suspension was lifted on 11 April 2019, but the disciplinary matter continued. On 26 April 2019 the claimant was given a first written warning for...
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