Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (17 April 2024)
Citation: Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (17 April 2024)
Rule of thumb: If an employee is influential & seeking to do trade union activities to improve working conditions, can this person be put on gardening leave with full pay? There was a loophole section which allowed an employer to do this to an employee, but, the UKSC made a declaration of incompatibility with Article 10, ECHR, The Right to Freedom of Association.
Background facts: This case invoked the subjects of employment law, association law, and the human right to freedom of association.
The basic facts were that Mrs Mercer worked in the care-services sector – she was an employee of the Government. She started trying to form a union with other workers to improve pay & working conditions. She was suspended & ordered not to interact with other employees, but she was given full pay for the time she was suspended and was on ‘gardening leave’.
Mrs Mercer argued that this was a breach of the Trade Union Act. The Government argued that a provision of the Trade Union Act allowed them do so.
Court held: The Court affirmed that this section did indeed affirm this, however, they made a declaration that the provision allowing this was incompatible to the ECHR Right to Freedom of Association.
Ratio-decidendi:
‘2. Fiona Mercer, the appellant, was at all material times employed as a support worker in the care sector by Alternative Futures Group Ltd ("AFG"), a care services provider. As a UNISON workplace representative, she was involved in planning and took part in lawful strike action at her workplace. She was suspended by her employer. During her suspension she received normal pay, but received nothing for the overtime she would normally have worked. The effect, if not the purpose, of the suspension was also to remove her from the workplace while the industrial action was in progress. She complained to an employment tribunal that the decision to suspend her was taken for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union "at an appropriate time" or penalising her for having done so. Her claim was disputed as a matter of fact (her employer argued that the suspension was because she abandoned her shift without permission and spoke to the press without permission) and as a matter of law.
3. As a matter of ordinary domestic construction, section 146 of TULRCA has been interpreted as not providing protection from detriment short of dismissal to workers engaged in lawful strike action. This is because the words "at an appropriate time" are defined to exclude working time (save where the employer has consented to the activities in question) so that they limit the protection available to activities which are outside working time and/or not inconsistent with the worker's performance of their primary duties to their employer. However, the appellant argues that the protection afforded by article 11 of the European Convention on Human Rights ("the Convention") together with the strong interpretative obligation in section 3 of the Human Rights Act 1998 ("the HRA") make it possible to construe section 146 compatibly with article 11 to offer extended protection to workers for detriment short of dismissal for participation in lawful strike action….
121. Accordingly, I would make a declaration under section 4 of the HRA that section 146 of TULRCA is incompatible with article 11, insofar as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union’.
Lady Simler
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.