Introduction

The United Kingdom Supreme Court, in the case of Secretary of State for Business and Trade v Mercer ([2024] UKSC 12), addressed the compatibility of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) with Article 11 of the European Convention on Human Rights (ECHR). The appellant, Fiona Mercer, a support worker and UNISON workplace representative, was suspended by her employer, Alternative Futures Group Ltd (AFG), for participating in lawful strike action. While Marie's suspension did not result in dismissal, it did lead to the withholding of overtime pay and removal from the workplace during the strike. The core issue revolved around whether section 146 of TULRCA sufficiently protects workers from detrimental actions, short of dismissal, for engaging in lawful industrial action, thereby aligning with Article 11 of the ECHR, which safeguards freedom of association and assembly.

Summary of the Judgment

The Supreme Court reversed the Court of Appeal's decision, determining that section 146 of TULRCA is incompatible with Article 11 of the ECHR. The Court held that the current statutory provisions do not afford adequate protection against sanctions, short of dismissal, for workers participating in lawful strikes. This lack of protection undermines the right to freedom of association as protected under Article 11. Consequently, the Supreme Court declared section 146 of TULRCA incompatible, emphasizing the need for legislative reform to extend protections to prevent any form of detriment—however minor—that aims to deter or penalize participation in lawful strike actions.

Analysis

Precedents Cited

The judgment extensively referenced both domestic and European precedents to build its case:

• R (Ullah) v Special Adjudicator [2004] UKHL 26: Established the "mirror principle," obligating UK courts to align domestic law interpretations with Strasbourg jurisprudence.
• R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56: Reinforced the necessity for domestic laws to reflect the standards set by the European Court of Human Rights.
• Sindicatul "Pastorul cel Bun" v Romania (2013) 58 EHRR 10: Highlighted the essential elements of trade union freedoms under Article 11.
• National Union of Rail, Maritime and Transport Workers v United Kingdom (RMT): Clarified the scope of Article 11 protections concerning strike actions.
• Karaçay v Turkey and other related cases: Demonstrated that even minimal sanctions for strike participation could violate Article 11 if they aim to deter union activities.
• Danilenkov v Russia and Tek Gida Iş Sendikasi v Turkey: Showed instances where the state's failure to protect union members led to Article 11 breaches.

These cases collectively underscored the necessity for robust legal protections against any form of employer-induced detriment that seeks to undermine trade union activities.

Legal Reasoning

The Supreme Court's legal reasoning hinged on several critical points:

• Interpretative Limits of Section 3 HRA: While section 3 of the Human Rights Act 1998 (HRA) mandates that legislation be interpreted compatibly with Convention rights "so far as it is possible to do so," the Court determined that a compatible interpretation of section 146 of TULRCA was not feasible without constituting impermissible judicial legislation.
• Legislative Structure and Intent: The Court emphasized that TULRCA's provisions, especially sections 146 and 152, are distinct and were crafted to address different facets of trade union protection. Reading section 146 in a way that includes all forms of strike action would undermine the established framework and the nuanced protections already in place for dismissals under section 238A.
• Core vs. Secondary Rights: Drawing from Strasbourg's jurisprudence, the Court identified that while the right to strike is protected, it is not deemed a "core" right necessitating absolute protection. However, any detriment intended to deter trade union activities strikes at the essence of Article 11 protections.
• State's Positive Obligations: The Court reasoned that the UK's failure to provide adequate legal remedies for detriments short of dismissal for participating in lawful strike action could be seen as a breach of its positive obligations under Article 11.

In essence, the Court found that the existing legal framework inadequately shields workers from sanctions that aim to discourage their participation in lawful industrial actions, thereby infringing upon their fundamental rights under the ECHR.

Impact

The Supreme Court's decision holds significant implications for UK labor law and workers' rights:

• Legislative Reform: The declaration of incompatibility signals an urgent need for Parliament to amend TULRCA to extend protections against actions short of dismissal for participating in lawful strikes.
• Enhanced Worker Protections: Future workers engaging in lawful strike actions will benefit from broader legal safeguards against any form of employer-induced detriment, not limited to dismissal.
• Alignment with ECHR: The decision ensures that UK domestic law remains in harmony with European human rights standards, specifically regarding freedom of association and assembly.
• Judicial Interpretation Limits: The ruling reaffirms the judiciary's restraint in not overstepping into policy-making, especially in sensitive socio-economic areas, emphasizing that such decisions are the remit of Parliament.

Overall, the judgment acts as a catalyst for potential legislative changes aimed at reinforcing workers' rights and ensuring that the UK's legal framework adequately protects individuals participating in collective bargaining activities.

Complex Concepts Simplified

Section 146 of TULRCA

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 offers protection to workers against any detriment (negative treatment) by their employer if such detriment is due to their participation in trade union activities at an appropriate time. "Appropriate time" typically means outside working hours or with employer consent during working hours. However, this section did not explicitly protect against actions short of dismissal, such as suspension or withholding of overtime pay, for workers participating in lawful strike actions.

Article 11 of the European Convention on Human Rights

Article 11 guarantees the right to freedom of assembly and association. In the context of labor, it protects the right to form and join trade unions and engage in collective bargaining and strike actions. This article ensures that individuals can collectively express and defend their interests without undue interference.

Declarations of Incompatibility under HRA

The Human Rights Act 1998 allows UK courts to declare that a specific piece of primary legislation is incompatible with ECHR rights. Such a declaration does not invalidate the law but signals to Parliament that it may need to consider amending the legislation to comply with human rights standards.

Positive Obligations of the State

Under Article 11, the state has positive obligations to protect individuals' rights of freedom of association. This includes ensuring that there are effective legal remedies available when these rights are infringed upon, such as protection against employer sanctions for participating in lawful strikes.

Conclusion

The UK Supreme Court's ruling in Secretary of State for Business and Trade v Mercer marks a pivotal shift in the protection of workers' rights concerning collective bargaining and industrial action. By declaring section 146 of TULRCA incompatible with Article 11 of the ECHR, the Court underscored the inadequacies of the current legal framework in safeguarding workers against detrimental actions short of dismissal. This decision not only aligns UK law with European human rights standards but also underscores the judiciary's role in ensuring that domestic legislation does not infringe upon fundamental rights. The judgment serves as a clarion call for legislative bodies to re-evaluate and amend existing laws to provide comprehensive protection for workers engaged in lawful strikes, thereby reinforcing the pillars of freedom of association and collective bargaining in the modern workplace.

In the broader legal context, this judgment emphasizes the delicate balance courts must maintain between interpreting existing laws and respecting the legislative domain's policy-making aspects. It also reinforces the principle that while rights are protected, their practical application must consider the dynamic interplay of individual freedoms and socio-economic realities.