Secretary of State for Business and Trade v Mercer
| Jurisdiction | England & Wales |
| Judge | Lady Simler,Lord Lloyd-Jones,Lord Hamblen,Lord Burrows,Lord Richards |
| Judgment Date | 17 April 2024 |
| Neutral Citation | [2024] UKSC 12 |
| Court | Supreme Court |
Lord Lloyd-Jones
Lord Hamblen
Lord Burrows
Lord Richards
Lady Simler
Appellant
Michael Ford KC
Stuart Brittenden
Alan Bogg
(Instructed by UNISON Legal Services (London))
Respondent
Daniel Stilitz KC
Hannah Slarks
(Instructed by Government Legal Department)
Heard on 12 and 13 December 2023
Lady Simler ( with whom Lord Lloyd-Jones, Lord Hamblen, Lord Burrows and Lord Richards agree):
Employees who are dismissed for taking part in lawful strike action have some statutory remedies for unfair dismissal but there is no express statutory (or other) protection in domestic law against action short of dismissal for employees, or indeed, workers who participate in lawful strike action. The question on this appeal is whether section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) can properly be interpreted as extending to provide such protection, and if not, what is the consequence.
Fiona Mercer, the appellant, was at all material times employed as a support worker in the care sector by Alternative Futures Group Ltd (“AFG”), a care services provider. As a UNISON workplace representative, she was involved in planning and took part in lawful strike action at her workplace. She was suspended by her employer. During her suspension she received normal pay, but received nothing for the overtime she would normally have worked. The effect, if not the purpose, of the suspension was also to remove her from the workplace while the industrial action was in progress. She complained to an employment tribunal that the decision to suspend her was taken for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union “at an appropriate time” or penalising her for having done so. Her claim was disputed as a matter of fact (her employer argued that the suspension was because she abandoned her shift without permission and spoke to the press without permission) and as a matter of law.
As a matter of ordinary domestic construction, section 146 of TULRCA has been interpreted as not providing protection from detriment short of dismissal to workers engaged in lawful strike action. This is because the words “at an appropriate time” are defined to exclude working time (save where the employer has consented to the activities in question) so that they limit the protection available to activities which are outside working time and/or not inconsistent with the worker's performance of their primary duties to their employer. However, the appellant argues that the protection afforded by article 11 of the European Convention on Human Rights (“the Convention”) together with the strong interpretative obligation in section 3 of the Human Rights Act 1998 (“the HRA”) make it possible to construe section 146 compatibly with article 11 to offer extended protection to workers for detriment short of dismissal for participation in lawful strike action.
This case has proceeded on assumed facts to determine the scope of section 146 as a preliminary question of law. It is assumed for these purposes that the decision to suspend the appellant was taken to deter her participation in lawful strike action. In the Employment Tribunal, Employment Judge Franey (who expressed well-founded reservations about whether it was appropriate to proceed in this way) held that, as a matter of domestic law, section 146 of TULRCA does not extend protection to participation in lawful strike action and could not be interpreted compatibly, even using the section 3 interpretative obligation. On appeal, the Secretary of State for Business and Trade (referred to below as “the Secretary of State”) intervened to support the Employment Tribunal's decision. The decision was reversed by the Employment Appeal Tribunal: [2021] ICR 1598. Choudhury J (President) held that a compatible interpretation with article 11 was both necessary and possible by adding an additional limb to the definition of “appropriate time” in section 146(2), namely “(c) a time within working hours when he is taking part in industrial action”.
The Secretary of State (but not the employer) appealed. In the Court of Appeal, Ms Mercer recognised that the formulation of additional limb (c) went too far because it did not qualify the type of industrial action covered. She accepted the criticism made by the Secretary of State that the EAT's reformulated section 146(2) went beyond any protection recognised by the European Court of Human Rights, which had been concerned only to protect lawful industrial action in appropriate circumstances. Since the mirror principle in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 at para 20 and R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56, [2023] AC 559 at para 101 requires domestic courts generally to keep pace with Strasbourg, no less but no more, it was accepted that the reading down of section 146(2) should only be applicable to industrial action which is lawful under domestic law. Accordingly, a reformulated amendment to section 146(2) was proposed: the new subparagraph (c) added to the definition of “an appropriate time” in section 146(2) should state, “(c) in respect of a detriment short of dismissal, a time within working hours when he is taking part in protected industrial action within the meaning of section 238A(1)”.
The Court of Appeal (Lord Burnett of Maldon CJ, Bean and Singh LJJ) allowed the Secretary of State's appeal: [2022] EWCA Civ 379, [2022] ICR 1034. In summary, the court held, first, that lawful industrial action is not included within the phrase “activities of an independent trade union” in section 146 as a matter of legislative design. Secondly, the court said that this failure to give legislative protection against any sanction short of dismissal for participation in lawful strike action may put the United Kingdom in breach of article 11 even in the case of a private sector employer, if the sanction is one which strikes at the core of trade union activity. Thirdly, however, the court held that to interpret section 146(2) compatibly with article 11 would result in impermissible judicial legislation. Finally, the court held that it would not be appropriate to grant a declaration of incompatibility pursuant to section 4 of the HRA because the case involved a lacuna in the law rather than a specific statutory provision that was incompatible, and moreover, the extent of the incompatibility was unclear.
The appellant now appeals with permission to the Supreme Court. The appeal is resisted by the Secretary of State. There are three grounds of appeal:
(a) Ground 1 concerns the extent to which article 11 of the Convention protects union members against sanctions which are intended to dissuade or penalise them for taking part in taking lawful industrial action organised by their union, and whether, on the assumed facts, the UK was in breach of a positive duty to provide effective protection to the appellant through the means of section 146.
(b) Ground 2 concerns whether the Court of Appeal erred in deciding that a compliant construction of section 146 of TULRCA which protects union members against being subjected to detriments because of participation in trade union activities, was not possible under section 3 of the HRA.
(c) If a compliant interpretation of section 146 of TULRCA is not possible, ground 3 concerns the question whether the Court of Appeal erred in refusing to grant a declaration of incompatibility under section 4 HRA.
TULRCA draws a distinction between “employees” and “workers” and defines these and related expressions in sections 295 and 296 respectively. An employee is an individual who has entered into or works under a contract of service or apprenticeship. The term “worker” is a wider concept and includes an individual who works under any contract whereby he or she undertakes to do or perform personally any work or services for another party to the contract who is not their professional client. Certain protections afforded by TULRCA are limited to employees. The protection against dismissal in circumstances discussed below in section 152 is only available to employees. Other protections are afforded to workers, and section 146 is an example.
Part III of TULRCA concerns rights in relation to union membership and activities. Section 146 in Part III is central to this appeal. It is headed “Detriment on grounds related to union membership or activities” and, so far as relevant, 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 …”
What is an “appropriate time” is defined in section 146(2) as follows:
“(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 (or other contract personally to do work or perform services), 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. If the tribunal finds that the complaint is well-founded, it makes a declaration to...
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