The Supreme Court has ruled that UK trade union legislation is incompatible with the European Convention of Human Rights in failing to prohibit detriment (short of dismissal) for taking part in lawful industrial action. It is now for Parliament to legislate to delineate the required protection. Until then, the position for private sector employers is unchanged and imposing sanctions short of dismissal (such as disciplinary warnings, suspension or withdrawing discretionary benefits) will not breach trade union legislation - although it could still give rise to reputational and industrial relations issues (and in some cases possible claims for breach of the implied duty of trust and confidence).
In State for Business and Trade v Mercer the Supreme Court held that section 146 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA ), which protects workers from detriment for taking part in trade union activities 'at an appropriate time' (defined to mean outside of working hours), cannot be read so as to cover detriment for participating in lawful strike action (which is inevitably during working hours). The Court held that this is incompatible with the right to strike under Article 11 of the European Convention on Human Rights, as employees are unable to strike without exposing themselves to the risk of detrimental treatment.
The Supreme Court made a declaration of incompatibility, leaving it to Parliament to choose whether and how to legislate in this area (but also noting that withholding pay is not a detriment, because there is no entitlement to pay if a person does not work). The Supreme Court stated that the introduction of legislation would necessarily require consideration of whether the protection in TULRCA should mirror (or be more or less proscriptive than) the limited protection against dismissal for taking part in lawful industrial action (automatic unfair dismissal protection for striking workers only applies during the first 12 weeks), and how it should apply in relation to 'limb (b) workers'.
The Government is reported to be considering the judgment carefully before responding, but is unlikely to make this a priority before the General Election. On the other hand, it is expected to be a high priority for any future Labour government, given the Labour Party's commitment to overhaul trade union law if elected.
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