Introduction

The case of Mercer v Alternative Future Group Ltd & Anor ([2022] EWCA Civ 379) addresses a pivotal question in employment law: whether Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) extends protections to employees participating in lawful industrial action as members of independent trade unions. The dispute centers around Fiona Mercer, a long-term employee and trade union representative, who faced suspension and disciplinary actions during a period of industrial action organized by her union, UNISON.

This case delves into the intersection of domestic labor protections and the obligations under the European Convention on Human Rights (ECHR), specifically Articles 10 and 11, which safeguard freedom of expression and association. The judgment explores the interpretation of statutory provisions in light of human rights obligations, setting a significant precedent for future industrial relations and employment dispute resolutions.

Summary of the Judgment

The initial ruling by Employment Judge Franey concluded that Section 146 of TULRCA does not extend protection to participation in industrial action. However, acknowledging the robustness of Article 11 protections, Franey considered interpreting Section 146 in a manner compliant with the Human Rights Act 1998. This interpretation was subsequently overturned by the Employment Appeal Tribunal (EAT), which allowed the claimant's appeal, leading the Secretary of State to intervene and eventually appeal the EAT's decision. The Court of Appeal ultimately reinstated the original tribunal's decision, determining that Section 146 cannot be read down to include industrial action protections without overstepping judicial interpretative bounds.

The final outcome affirmed that Section 146 of TULRCA does not offer protection against detriments short of dismissal for participation in industrial action, thereby maintaining the existing statutory framework without extending it to cover such activities under Article 11 of the ECHR.

Analysis

Precedents Cited

The judgment extensively references key cases from both domestic and Strasbourg jurisprudence:

• Ezelin v France: Addressed the imposition of disciplinary sanctions for participation in peaceful assemblies, emphasizing that such restrictions cannot be justified even with minimal sanctions.
• Kara ay v Turkey and Kaya v Turkey: Focused on the proportionality of disciplinary actions taken against employees participating in strikes, establishing that even minimal sanctions can constitute breaches of Article 11.
• RMT v UK: Highlighted the margin of appreciation afforded to states in regulating trade union activities, differentiating between primary and secondary industrial actions.
• Danilenkov v Russia and Tek Gida v Turkey: Examined state obligations in protecting trade union members from employer detriments, albeit without direct correlation to the right to strike.
• Poplar Housing v O'Donoghue and In re S (Minors): Clarified the boundaries between statutory interpretation and judicial legislation, reinforcing the primacy of parliamentary intent.

These precedents collectively influenced the court’s analysis, particularly in balancing statutory interpretation with human rights obligations.

Legal Reasoning

The court scrutinized Section 146 of TULRCA, which guards against detriments related to trade union activities. The core legal question was whether this protection extends to participation in industrial action, such as strikes. The Employment Judge initially sought to align domestic law with ECHR obligations through a read-down interpretation of Section 146, arguing that any interference with Article 11 rights needed to be minimal and justified.

However, upon appeal, the Court of Appeal emphasized that:

• The statutory scheme of TULRCA distinctly separates general trade union activities (Part III) from industrial action (Part V).
• Extending Section 146 to cover industrial action would create internal inconsistencies, especially with Section 152, which addresses unfair dismissal related to union activities without encompassing industrial action.
• The interpretative obligations under Section 3 of the Human Rights Act 1998 do not permit courts to effectively legislate by expanding statutory protections beyond their clear legislative intent.

The court concluded that any attempt to include industrial action under Section 146 would constitute judicial overreach, requiring legislative intervention rather than interpretative adjustments by the judiciary.

Impact

This judgment reaffirms the separation between statutory provisions governing general trade union activities and those specifically addressing industrial action. By upholding the limitations of Section 146, the Court of Appeal emphasizes the judiciary’s restraint in extending legislative protections without clear parliamentary mandate. The ruling underscores the importance of legislative clarity and the appropriate demarcation of protections within employment law.

Future cases will likely reference this judgment to delineate the boundaries of statutory protections versus human rights obligations, particularly in contexts where industrial action intersects with employment disputes. Additionally, it signals to legislators the need to revisit and possibly recalibrate the statutory framework to address emerging human rights considerations in employment law comprehensively.

Complex Concepts Simplified

Section 146 of TULRCA

Section 146 protects workers from being subjected to any detriment (negative actions) by their employer if the employer's actions are aimed at preventing them from participating in trade union activities at an appropriate time or penalizing them for such participation.

Article 11 of the European Convention on Human Rights

Article 11 safeguards the right to freedom of assembly and association. It ensures that individuals can join and form trade unions and engage in collective activities like protests and strikes without undue interference or punishment.

Human Rights Act 1998 (HRA)

The HRA incorporates the ECHR into domestic UK law. Section 3 of the HRA requires UK courts to interpret legislation, as far as possible, in a way that is compatible with ECHR rights.

Judicial Legislation

Judicial legislation refers to judges effectively creating new laws through their rulings, rather than merely interpreting existing statutes. This is generally discouraged, as law-making is the prerogative of the legislature.

Margin of Appreciation

This doctrine allows states some discretion in how they implement and balance human rights within their national contexts, acknowledging differing cultural, social, and political environments.

Conclusion

The Mercer v Alternative Future Group Ltd judgment underscores the judiciary's role in maintaining the integrity of statutory provisions while respecting human rights obligations. By affirming that Section 146 of TULRCA does not extend to participation in industrial action, the Court of Appeal delineates clear boundaries between general trade union protections and specific industrial action regulations. This decision reinforces the principle that significant extensions of statutory protections, especially those intersecting with complex human rights considerations, are within the legislative domain rather than judicial interpretation.

The ruling holds significant implications for employment law, particularly in how protections against employer detriments are structured and interpreted. It calls for legislative attention to bridge existing gaps between domestic law and ECHR obligations, ensuring comprehensive protections for workers engaged in industrial action. Ultimately, this case highlights the delicate balance between upholding statutory intent and fulfilling international human rights commitments within the UK's legal framework.