The UK Supreme Court has ruled in favour of an employee who was suspended from work during industrial action, stating that UK law contradicts human rights legislation. In a unanimous decision with potential implications for industrial relations, the court found the government failed to fulfil its legal duties concerning the right to engage in lawful strikes. The case, celebrated by the UNISON trade union’s secretary general as a victory for employees, exposed a gap in protection.
The ruling, delivered by Lady Simler alongside Lords Lloyd-Jones, Hamblen, Burrows, and Richards, emerged from Fiona Mercer’s case. Mercer, a care worker and union representative at Alternative Futures Group (AFG), faced suspension after participating in a strike in 2019. She contested this suspension, arguing it violated her right to strike.
Initially, an employment tribunal, led by Judge Franey, ruled against Mercer, stating that the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) did not extend protections to striking employees. However, Franey acknowledged the Act’s incompatibility with Article 11 of the European Convention on Human Rights, paving the way for an appeal.
Mercer appealed to the Employment Appeal Tribunal (EAT), asserting that TULRCA should align with Article 11. EAT Judge Choudhury sided with Mercer, recognizing the Act’s failure to provide adequate protection. AFG opted not to challenge this decision, but the Secretary of State for Business and Trade intervened, leading to an appeal at the Court of Appeal, where the government’s stance was upheld.
Mercer then brought her case to the Supreme Court, which examined TULRCA’s Sections 146 and 152. The Court noted Section 152’s omission of protection against actions like suspension or pay cuts, concluding it left employees vulnerable. Lady Simler emphasized that any sanction short of dismissal for participating in lawful strikes undermined the right to strike and warned against eroding this fundamental right.
In essence, the Supreme Court’s ruling highlights the need for comprehensive legal safeguards to uphold workers’ rights during industrial action.
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