UK: EAT reads words into legislation to prohibit detriment for taking part in industrial action

Update March 2022: the Court of Appeal has overturned the EAT, ruling that, although the lack of protection in the 1992 Act may be a breach of Article 11, it is not for the courts to read in words given that the exact extent of the protection engages a number of policy questions best determined by Parliament.

The EAT has ruled that words should be read into domestic legislation to ensure that employees are protected from detriment (as well as dismissal) for taking part in industrial action.  Employers should take extra care when dealing with employees involved in strike action in future.

The Trade Union Labour Relations (Consolidation) Act 1992 makes it automatically unfair to dismiss for participating in industrial action or taking part in union activities at an appropriate time, but the prohibition on detriment only expressly extends to taking part in union activities. The separate treatment of industrial action and union activities has meant that "union activities" had been construed as excluding industrial action, leaving employees with no protection from detriment for industrial action.

The EAT in Mercer v Alternative Future Group Ltd has now ruled that words should be read in to provide this protection in order to comply with the right to freedom of association under Article 11 of the European Convention on Human Rights.  The words extend the detriment protection to taking part in industrial action outside or during working hours, and it appears not to be restricted to 'protected' industrial action (ie, action which is lawfully organised and compliant with balloting requirements)* nor to be limited in time.  This contrasts with the provisions on dismissal which only apply if the dismissal falls within a 'protected period' and is for 'protected' industrial action.