This article looks at the case of Mercer v Alternative Future Group Ltd and anor and the case of industrial action and whether laws be rewritten to extend protection for striking employees.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides that in relation to taking part in industrial action there will in prescribed circumstances of protection against dismissal and separately, it provides that employees taking part in trade union activities benefit from protection against any detriment. In the case of Mercer v Alternative Future Group Ltd and anor the question was whether further words should be read into these provisions to provide protection from detriment for taking part in industrial action as that lack of protection may breach the European Convention on Human Rights.
Mrs Mercer was a support worker and a union representative who had been involved in the planning and taking of action in respect of a dispute regarding pay for sleep-in shifts. She had later been suspended from work pending disciplinary proceedings on the grounds that she had abandoned her shift on two occasions without permission and had spoken to the press without prior authorisation. Despite the suspension being lifted and no disciplinary sanction ultimately being imposed Mrs Mercer claimed her suspension amounted to an unlawful detriment.
It was held that whilst her actions had amounted to participation in industrial action and that had previously been found to have been outside the scope of protection given in TULCRA to trade union activities taking into account the decisions of the European Court of Human Rights this lack of protection from detriment for participating in industrial action could infringe Article 11 of the European Convention on Human Rights. However, it was not appropriate read into TULRCA words that would extend the scope of protection as it would ‘go against the grain’ of the legislation.
The Court of Appeal’s decision reverses that given last year when it had been held words should be added into the legislation to extend protection. The structure of the legislation indicated a clear intention by Parliament to treat industrial action differently from other trade union activities. It was also relevant that any changes would need to address policy questions as to whether protection should be subject to time limits and whether it would apply to all industrial action or only to official industrial action called by the trade union. These would be matters for Parliament rather than the courts to assess.