Under section 146 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA), workers have the right not to be subjected to a detriment for taking part in trade union activities at an appropriate time. The issue for the Court of Appeal in Mercer v Alternative Future Group Ltd was whether an individual could bring a claim under TULRCA where the trade union activities in question were industrial action.

What happened

Fiona Mercer was a trade union representative. In 2019 she organised and participated in lawful industrial action. She was subsequently suspended and given a warning, which was later overturned, for leaving her shift. She claimed that this amounted to a detriment for taking part in trade union activities at an appropriate time.

At a preliminary hearing the employment tribunal found that she could not pursue her claim under s146 because as a matter of domestic law trade union activities did not include participation in industrial action. The relevant parts of TULRCA draw a clear distinction between trade union activities on one hand and industrial action on the other.

Ms Mercer’s appeal against that decision succeeded when the EAT found that under the European Convention on Human Rights (ECHR), trade union activities did encompass industrial action. The EAT was prepared to read words into s146 to give effect to the ECHR. The Secretary of State for BEIS intervened in the case and appealed against the EAT’s decision.

Court of Appeal decision

The Court of Appeal decided that Ms Mercer was not entitled to pursue her claim under s146 of TULRCA.

As the employment tribunal found, TULRCA does not provide protection against detrimental treatment short of dismissal for taking part in or organising industrial action. This may be a breach of an individual’s right to freedom of association and a breach of the government’s obligation under the ECHR to secure protection against action short of dismissal for employees who are participating in official industrial action.

However, the precise ambit of such protection is not clear from the existing human rights case law. Deciding how far it should extend involves difficult policy questions, including:

• Whether an individual should be protected against detriment for taking part in all industrial action or only official industrial action;
• How long protection against detriment should last in cases of long-running industrial action, given that protection against dismissal for industrial action is time limited; and
• What types of detriment should be prohibited in the case of a private sector employer – for example, should it be unlawful for an employer to withhold a discretionary bonus or refuse an opportunity for promotion?

It was for Parliament, not the courts, to answer those questions. A court’s role is to interpret statutory requirements, not to legislate. Attempting to read words in to TULRCA to reflect the protection available to workers under the ECHR would be impermissible judicial legislation.