EAT ruling means better protection for striking staff

Employers that take disciplinary action or otherwise penalise employees who have taken part in union-organised workplace disputes risk exposing themselves to tribunal claims, an employment tribunal review has concluded. 

Last week (3 June), the Employment Appeal Tribunal (EAT) ruled on the case of Mrs F Mercer versus Alternative Future Group (AFG), essentially agreeing with the original tribunal, but highlighting that there was a conflict between Section 146 of the Trade Union and Labour Relations Act and Article 11, European Convention on Human Rights (ECHR).

Mercer is an active support worker at the health and social care charity AFG.

In 2019, AFG was embroiled in a trade dispute over payments for sleep-in shifts and Unison called a series of strikes which took place between 2 March and 14 May 2019.

Mercer was involved in planning and organising the strikes, took part in some media interviews and communicated an intention to participate in the strike action herself.

However, on 26 March 2019, she was suspended from work – which she claimed was as a result of activities undertaken for Unison, although this was refuted by her employer.

Under UK law, Mercer would have been protected from detriment from her employer for taking part in the activities of an independent trade union, but the activities protected were not previously understood to have included industrial action.

However, as a result of the appeals\ written judgement this looks set to change as the EAT seemingly interpreted that industrial action should benefit from the same protections.

This means that employers accused of withholding overtime or promotion opportunities from workers taking part in industrial action, for example, could now face tribunal claims.

Unison general secretary Christina McAnea said in a statement that “good employers have nothing to fear” from the judgement, “but those who’ve been treating staff unfairly because they’ve taken strike action will need to beware”.

“Until now, employers have used a loophole in UK law to pick on workers who’ve taken part in disputes, safe in the knowledge that nothing will happen to them. Now they’ll no longer be able to.”

Fraser Younson, employment partner at Keystone Law, explained that prior to this case UK law had stopped employers sacking staff involved in strike action, or other workplace disputes, but not from either disciplinary action or mistreating employees.

However, he told HR magazine: “Mercer versus AFG does not, contrary to what some unions are claiming, give workers an absolute right to strike without any recourse for an employer.

“Under sections 137 and 138 Trade Unions and Labour Relations (Consolidation) Act 1994 employers can dismiss workers who strike subject to certain conditions.”

Younson explained workers do have a measure of protection against strike-related dismissals, but there is no similar protection for workers subjected to lesser detriments.

“So, at one level, the Employment Appeal Tribunal (EAT) is simply recognising and remedying that anomaly,” he said.

Speaking to HR magazine, a spokesperson from AFG acknowledged the outcome of the EAT and said the charity is currently considering next steps with legal advisers, but they reiterated that the charity’s action was unconnected to the issue at the heart of the appeal.

"We wish to make it clear the action taken against Mercer by us was for an entirely unrelated matter and in no way connected with her trade union activities or her right to organise and take part in industrial action," they said.

"We note that the EAT have considered matters related to the broader legal framework and the protections against detriment for taking part in industrial action with reference to s.146 of TULRCA and Article 11 of ECHR."


This article has been amended from the original which was published 7 June 2021.

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