The Effective Collective – Striking a balance: Supreme Court declares UK law incompatible with workers’ right to take industrial action

On 17 April 2024, the UK Supreme Court, in State for Business and Trade v Mercer, declared that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) was incompatible with Article 11 of the European Convention on Human Rights (ECHR).

Fiona Mercer (FM) was employed by Alternative Futures Group Ltd (AFG) and participated in lawful strike action at her workplace. AFG suspended FM and, although she received normal pay during her suspension, she was not paid for the overtime she would have typically worked.

Under section 146 of TULRCA, a worker has the right not to be subjected to any detriment on the grounds of taking part in any trade union activities. Section 146 has been interpreted so as to only protect workers from dismissal during lawful strike action. 

If a worker is dismissed for taking part in strike action, they can bring a claim for wrongful dismissal. If an employee is dismissed for participation in union activities, they may be able to make a claim for unfair dismissal. Section 146 of TULRCA does not prevent employers from taking other forms of action against an employee who takes part in strike action.

By unanimous decision, the Supreme Court found that section 146 breaches workers’ rights under Article 11 of the ECHR, which provides that everyone has the right to freedom of peaceful assembly, including the right to form and join trade unions. Lady Simler commented that section 146 “nullifies the right to take lawful strike action” by not providing protection against employer sanctions short of dismissal.

Rather than opting to read down the legislation so that it complied with Article 11, the Supreme Court allowed FM's appeal against the Court of Appeal’s refusal to make a declaration and issued a declaration of incompatibility under section 4 of the Human Rights Act, requiring Parliament to opt to legislate in this area. 

Despite the declaration of incompatibility, the Supreme Court’s judgement has no immediate impact on employers, as section 146 of TULRCA will continue to be valid and enforceable. However, employers should be wary of the declaration when contemplating taking action short of dismissal against employees or workers involved in strike action.

The Supreme Court’s ruling has the potential to serve as a catalyst for the implementation of legislative reforms aimed at preventing employers imposing disproportionate penalties on employees and workers participating in strikes. Whereas the chances of the current Government looking to reform existing industrial action legislation is small, if a Labour government is elected, legislative changes to protect employees participating in lawful strike action could be all the more likely.