Key Facts
- •Fiona Mercer, a UNISON workplace representative, was suspended by her employer (AFG) for participating in lawful strike action.
- •Mercer's suspension resulted in the loss of overtime pay, effectively removing her from the workplace during the strike.
- •Mercer claimed that the suspension was intended to deter or penalise her participation in lawful strike action, in breach of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
- •The case proceeded on assumed facts, accepting that the suspension's purpose was to deter strike participation.
Legal Principles
Section 146 of TULRCA protects workers from detriment due to union activities at an 'appropriate time', defined as outside working hours or with employer consent.
TULRCA, sections 146(1), 146(2)
Article 11 of the European Convention on Human Rights protects freedom of peaceful assembly and association, including the right to strike in appropriate circumstances.
European Convention on Human Rights, Article 11
Section 3 of the Human Rights Act 1998 requires legislation to be interpreted compatibly with Convention rights, where possible.
Human Rights Act 1998, section 3
The 'mirror principle' requires domestic courts to keep pace with Strasbourg jurisprudence on Convention rights.
R (Ullah) v Special Adjudicator [2004] UKHL 26; R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56
A declaration of incompatibility under section 4 of the HRA can be made where a provision is incompatible with Convention rights and a compatible interpretation is impossible.
Human Rights Act 1998, section 4
Outcomes
The Supreme Court held that section 146 of TULRCA, as conventionally interpreted, is incompatible with Article 11 of the ECHR insofar as it fails to provide any protection against sanctions short of dismissal for participation in lawful strike action.
The court found that the absence of protection against detriments short of dismissal for lawful strike action constitutes a breach of the UK's positive obligation under Article 11 to secure the effective enjoyment of the right to strike. While acknowledging a wide margin of appreciation for the state in balancing employer and worker interests, the court determined that the complete lack of protection in section 146 is unjustified and disproportionate, effectively nullifying the right to strike.
A declaration of incompatibility was made under section 4 of the HRA.
The court deemed a compatible interpretation of section 146 impossible under section 3 of the HRA, as it would require extensive policy choices best left to Parliament. However, the incompatibility stems directly from section 146's failure to offer any protection, making a declaration appropriate.