Supreme Court clarifies protection for industrial action

The Supreme Court handed down its decision in Mercer v Alternative Future Group Ltd, providing important clarification on the scope of protection available to workers taking part in industrial action.

Ms Mercer was a support worker and trade union representative who organised and participated in lawful strike action. Following the strike, she was suspended by her employer, allegedly due to concerns about her conduct during the action. She brought claims under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), arguing that the suspension amounted to unlawful detriment for trade union activity.

The Supreme Court held that section 146 does not adequately protect workers from detriment short of dismissal for taking part in lawful industrial action. While dismissal for strike participation is separately restricted under section 152, there is no equivalent statutory protection against other forms of detriment, such as suspension or disciplinary sanctions. The Court concluded that this gap in protection was incompatible with Article 11 of the European Convention on Human Rights, which protects freedom of association.

Although the Court stopped short of rewriting the legislation, it issued a declaration of incompatibility. The decision places pressure on the Government to legislate and has immediate practical significance for employers managing industrial relations, particularly where disciplinary steps are contemplated following lawful strike activity.

This judgment also feeds directly into anticipated reforms under the Employment Rights Bill, which is expected to address trade union protections and worker rights more broadly. Employers should expect legislative change in this area and review current practices to ensure that participation in lawful industrial action does not expose the organisation to legal risk.