Case Study | Supreme Court rules trade union detriment ‘incompatible’ with human rights

Spencer West Employment Partner, Amanda Lennon, discusses the Supreme Court ruling in the case of  Secretary of State for Business and Trade v Mercer that employers cannot punish workers for taking part in industrial action, and what it means for the UK

In 2019 Fiona Mercer, a care worker, was suspended on basic pay (which meant she could not work overtime) and given a written warning by her employer, Alternative Futures Group, for planning and participating in lawful strike action. She took legal action against her employer for causing her detriment short of dismissal because she organised and took part in the strike, namely the suspension and requirement that she couldn’t contact her colleagues.

The UK Supreme Court has today  (17th April) ruled that British law on strike action breaches employees human rights as it doesn’t protect them from suffering a detriment by their employer short of dismissal for taking part in strikes. The Court decided that this legislation is incompatible with the European Convention on Human Rights. In a relatively unusual step, the Supreme Court has made a declaration to this effect. This means that the UK Parliament will now have to reconsider the offending legislation.

This is a significant judgement for the rights of striking workers in the UK and interestingly, as early as 2022 the Court of Appeal ruled that the legislation may well be compatible with the ECHR but nonetheless dismissed her case, after an intervention by the British government. The Supreme Court ruling therefore puts pressure on the government to revisit the legislation and make changes, despite being able to successfully intervene previously. It is also a significant win against the government’s recent moves to limit the rights of striking workers particularly in public and frontline services.

You can read more about this ruling and see Amanda’s comments in Personnel Today and HR Magazine