Bringing the Right to Strike Home: Secretary of State for Business and Trade v Mercer – Part 2

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.

The first part of this blog outlined the facts and decision in the Supreme Court case, Secretary of State for Business and Trade v Mercer, as well as the approach the Court took in distinguishing between private sector and public sector employment. The second part of this blog considers the approach of the Supreme Court in distinguishing between the ‘core’ and ‘essential’ in respect of trade union rights. While the reasoning of the European Court of Human Rights (ECtHR) is sometimes a little opaque, these two terms are not interchangeable in RMT. The right to strike is not yet designated as an ‘essential’ trade union freedom, though it is an integral prop to other ‘essential’ rights such as the right to make representations and the right to bargain collectively. In RMT, the distinction between ‘core’ and ‘accessory’ is being used in a different sense, to emphasise gradations of importance within a specific right (‘essential’ or otherwise). In RMT, for example, the Court was drawing a distinction between primary strike action, which was ‘core’ and deserving of stronger protection, and ‘secondary’ strike action which was ‘accessory’ and therefore amenable to a wider margin of appreciation. The situation in Mercer involved a primary strike, and hence applying RMT it was at the ‘core’ of the right to strike. This conceptual distinction is therefore internal to the right to strike. It is very likely that the right to bargain collectively, essential in Article 11 terms, also has ‘core’ and ‘accessory’ elements to it.

The misstep of the Supreme Court is in its failure to recognise that the targeted victimisation of individual workers engaged in lawful and protected trade union activity attracts the strongest protection under Article 11. This dimension of constitutional equality engages the fundamental constitutional responsibility of the court in human rights cases (for a recent and powerful examination of this constitutional value, see M.P. Foran, Equality Before the Law: Equal Dignity, Wrongful Discrimination, and the Rule of Law (Hart, 2023)).

The Supreme Court did not consider that a s. 3 interpretation was possible because it involved controversial policy choices between incommensurable options. This would lead the Supreme Court to stray beyond an interpretive role into the activity of legislating, which would have been constitutionally improper. This reticence has a long and respectable history and it was reflected in earlier reservations about judges developing a doctrine of contractual suspension and thereby usurping the democratic role of the legislature. Interestingly, one of the great labour law scholars of the 20th century, Lord Wedderburn, was circumspect about Lord Denning’s attempt to develop a doctrine of suspension in the celebrated case of Morgan v Fry. On the face of it, this seems surprising because the suspension doctrine prevented an employee from being sued for breach of contract for striking. Lord Wedderburn’s underlying worry was constitutional. The circumstances in which an employment contract should be treated as suspended for strike action depended upon controversial policy choices (e.g. was it restricted to ‘official’ strikes? Did it extend to action short of a full strike?), and judges were not well-placed to make them. Having determined the s. 3 issue, the Supreme Court then considered a s. 4 declaration. While the existence of incommensurable policy choices counted against a s. 3 interpretation, this counted in favour of a s. 4 declaration. It was constitutionally appropriate for these matters to be considered by the Executive and Parliament. Since there were no countervailing reasons against issuing a s. 4 declaration, the Supreme Court declared s. 146 TULRCA 1992 incompatible with Article 11 [120].

Any domestic protection for private sector workers victimised for strike action now awaits legislative action. Interestingly, workers employed directly by the state appear to be protected very strongly under Article 11, as recognised by Lady Simler where she refers to the stringent protections against even ‘minimal sanctions’ [76]. Such workers may be able to pursue action against a ‘public authority’ directly under s. 6 HRA 1998.

While the Supreme Court did not agree that all detriments for private sector workers infringed Article 11, it indicated that suing strikers for damages for breach of contract or suspension without pay was likely to be precluded by Article 11 [87]. The protection might not extend to situations where ‘the manner of the breach is harmful or disruptive’, which seems to envisage some kind of ‘malice’ or ‘abuse of rights’ constraint [83]. The Supreme Court also indicated that deductions from pay are not sanctions and nor should they be considered ‘detriments’ [61]. While this principle is undoubtedly correct in full strikes, there are difficult boundary issues where strikers are engaged in action short of full strike and are exposed to disproportionate deductions with the purpose of deterring or penalising the worker. Clearly, thorny issues of when pay deductions stray into unlawful detriments must be considered carefully in the legislative response.

The significance of Mercer cannot be overstated. The right to strike has often lurked in the English courts like the embarrassing uncle at the family Christmas party. Following Lady Simler’s judgment, it is now recognised fully and unequivocally as a human right warranting strong legal protection by the legislature. The constitutional responsibility for what happens next lies elsewhere. It would be a pity if the misplaced equivocation on the scope of private sector protections in Lady Simler’s judgment led to a faulty legislative response. Once industrial action is within the zone of collective lawfulness, as determined by the legislature, discriminatory victimisation of individual strikers is intrinsically wrongful under Article 11. On this point, the Strasbourg jurisprudence seems extremely clear. Otherwise, the very idea of an individual right to strike, with its correlative duties, is undermined. This would subvert the constitutional value of equality, which is of the essence in these individual discrimination cases under Article 11.

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