Historically, the level of legal protections afforded to trade unions and employees while participating in industrial action has been a highly politicised issue. It has also been the subject of litigation over the decades. Here, David Sheppard reviews how a recent Employment Appeal Tribunal ruling may significantly broaden the scope of these protections moving forward.
The relatively settled position since the 1970s, crystallised under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), was to provide blanket protection to workers suffering detrimental treatment or dismissal by their employer for participating in “trade union activities”, such as being a member of a trade union or arranging union members’ meetings, but did not extend similar levels of protection to workers engaging in “industrial action”.
Employees dismissed for participating in industrial action are subject to complex rules. In very general terms, if an employee is participating in unofficial industrial action, such as a “wildcat” strike without the endorsement or authorisation of their trade union, they would be statutorily barred from bringing an unfair dismissal claim if they were dismissed while and because they participated in such industrial action.
If an employee was dismissed for participating in “official” industrial action which was authorised by the relevant trade union, that employee again cannot bring an unfair dismissal claim, subject to limited exceptions. A dismissal will be deemed to be unfair if the industrial action was “protected” by being lawfully organised by the trade union, and the dismissal took place within 12 weeks of the date the employee first participated in the protected industrial action.
A dismissal at any time for participating in official industrial action will also be potentially unfair if an employer selects certain employees to be dismissed, rather than dismissing all striking employees en masse. However, the employer can still potentially defend an unfair dismissal claim in these circumstances applying ordinary principles, such as on the grounds of misconduct or “some other substantial reason”.
Significantly, no explicit statutory protection is provided under TULRCA to workers against detrimental treatment short of dismissal by their employers for participating in any form of industrial action, regardless of whether it is official or unofficial, protected or otherwise. Case law has until now consistently found that participating in industrial action did not amount to trade union activities so as to be protected against detrimental treatment under TULRCA.
Last week, the Employment Appeal Tribunal decision of Mercer v Alternative Future Group Ltd found that the exclusion of protection to workers from detrimental action short of dismissal when participating in industrial action was incompatible with Article 11 of the European Convention of Human Rights, being the human right to freedom of association and assembly.
The Employment Appeal Tribunal, therefore, decided that in order to give effect to individuals’ Article 11 rights, TULCRA could be interpreted to include participation in industrial action as amounting to “trade union activities” – meaning workers can now bring employment tribunal claims for suffering detriment short of dismissal for taking part in strike action, contrary to the previous understanding of the limits of protection to striking workers.
Although on its face the Mercer decision appears to be a technicality, it has the potential to significantly broaden the scope of protection to workers against any form of detriment for participating in all types of industrial action. This includes strike action, but also other conduct such as working-to-rule and refusing to work overtime, and may embolden trade unions to take more robust approaches to collective bargaining.
The decision makes industrial action a more powerful option available to unions in workplace disputes. It could significantly curtail employers’ ability to take measures in response to industrial action short of dismissal against its workforce, even if such action was unofficial or unprotected, given the risk of collective detriment claims under TULRCA.
It also raises into question the compatibility of the complex rules concerning unfair dismissal for participating in industrial action. Tribunals in the future will have to interpret such rules so as to give effect to Article 11 rights and consider whether the legislative wording can be stretched to ensure any interference with Article 11 rights is proportionate.
Given the success of the unions in applying Article 11 rights into UK law and the major impact it will have in the respective bargaining positions between unions and employers, this decision may well be appealed to the Court of Appeal and beyond. In addition, unions will be tempted to bring a future test case in the employment tribunal to seek to further limit the scope of employers to fairly dismiss employees for participating in industrial action.
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