Bringing the Right to Strike Home: Secretary of State for Business and Trade v Mercer – Part 1

by | May 10, 2024

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About Alan Bogg

Alan is currently Professor of Labour Law at the University of Bristol and a barrister at Old Square Chambers. He was previously Professor of Labour Law at the University of Oxford, and he is Emeritus Fellow, Hertford College, Oxford. Alan was instructed by UNISON in the Mercer case at the Supreme Court.

Individual strikers are protected from dismissal where they are dismissed for participating in ‘protected’ (i.e lawful and official) industrial action, under s. 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). However, there are many ways in which employers can penalise individual strikers other than through dismissal, such as through demotion, suspension, fines, disciplinary warnings, and disproportionate pay deductions. In Secretary of State for Business and Trade v Mercer, the Supreme Court considered if a worker proposing to strike was protected from ‘detriment’ under TULRCA 1992, s. 146. This was because it concerned her participation in the ‘activities of an independent trade union’. The Supreme Court concluded that strike action was excluded from s. 146, principally because it was not ‘at an appropriate time’ [44]-[45]. This meant that there was no statutory protection for the claimant, Ms Mercer, who (on the assumed facts) had been suspended for activities connected to a lawful and official strike. The effect of this was to create a zone of impunity for employers engaged in the selective victimisation of individual strikers.

It followed that her only available domestic redress was under the Human Rights Act (HRA) 1998. Supported by her union, UNISON, Ms Mercer pursued her case through the courts. Eventually, this required the Supreme Court to consider whether her Convention rights under Article 11 had been infringed as a result of the exclusion of industrial action from s 146. If there was an Article 11 infringement, could it be remedied by a s. 3 interpretation or a s. 4 declaration of incompatibility?

Giving a unanimous judgment for the Supreme Court, Lady Simler considered that the absence of any legal protection from detriment for individuals engaged in a lawful strike was not compatible with Article 11. She did not agree that any individual sanction, however light, was liable to have a dissuasive effect such as to infringe Article 11. In this respect, she considered that the ECHR case law allowed a wider margin of appreciation to states in ‘horizontal’ cases involving private sector employers. By contrast, even minimal sanctions were likely to infringe Article 11 where they were imposed by the state as a public employer [75]. Lady Simler also regarded the ‘core’ and ‘essential’ distinctions on the right to strike in the European Court of Human Rights’ (ECtHR) RMT v UK judgment as interchangeable. Since the right to strike was neither ‘core’ nor ‘essential’, it followed that there was a wider margin of appreciation in respect of regulation of the right to strike under Article 11 [69]. Despite the breadth of the margin of appreciation, however, the complete absence of any statutory protection from detriment meant that the state had not struck a fair balance in relation to individual strikers exposed to victimisation in private sector strikes [90]. As such, ‘section 146 of TULRCA both encourages and legitimises unfair and unreasonable conduct by employers’ [89].

The Supreme Court’s reasoning on Article 11 is of fundamental and historic significance in recognising that the individual right to strike must be protected as a matter of UK law. Some aspects of its approach are open to criticism, and two aspects will be considered briefly here. The first is the distinction between private sector and public sector employment. In Danilenkov v Russia, for example, the ECtHR observed that it did not matter whether the state was the direct employer or if it was responsible for securing the effective enjoyment of Article 11 rights of workers employed in the private sector. Danilenkov followed the approach in Wilson v UK, where the ECtHR found that a legal framework permitting the use of financial offers by private sector employers to induce trade union members to opt out of collective bargaining was a violation of Article 11.  In Wilson, the ECtHR did not even consider the issue of justification under Article 11(2). It adopted a hair-trigger approach to individual discrimination under Article 11. The second aspect, concerning the distinction made by the Supreme Court between the ‘core’ and ‘essential’, will be addressed in the second part of this blog.

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