The claimant was the workplace representative for her trade union. As part of that role, she was involved in organising strikes. She was subsequently suspended from work and faced disciplinary action. 

The argument by the claimant was that she was subjected to a detriment as a result of trade union activities. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 [the GB equivalent of A.73 of the Employment Rights (NI) Order 1996 in NI] seeks to protect workers against detriment in relation to participation in trade union membership and activities. 

The ET held that Section 146 worked in a way to protect workers against detriment for trade union activities but that this did not relate to industrial action. Furthermore, the section could not be interpreted in such a way to make it compliant with Article 11 of the European Convention on Human Rights which protects the freedom of assembly and association.  

The claimant appealed arguing that the Tribunal failed to exercise its duty under Section 3 of the Human Rights Act 1998 which gives wide interpretative powers to ensure that domestic legislation is interpreted in line with Convention rights. The Secretary of State intervened stating that Section 146 only applied to activities ‘at an appropriate time’. Accordingly, industrial action could never be regarded as being ‘at an appropriate time’.  

The EAT allowed the appeal. In interpreting Section 146 it was held that it would be a matter of ordinary language to include industrial action in ‘activities’ of a trade union. The difficulty though was that Part 5 of the 1992 legislation dealt with industrial action separately.   Therefore, that had to be considered and industrial action was excluded from the remit of Section 146. The EAT did hold that there had been an interference with Article 11 rights especially considering the narrower margin of appreciation that comes with industrial action.  The interference was not justified as there was no legitimate aim in excluding industrial action. Indeed, to permit disciplinary action leading to dismissal for exercising the right to strike would be a fundamental breach of Article 11 rights and European Court authorities. 

To circumvent this, the powers under Section 3 of the HRA 1998 could be invoked. This allowed Section 146 to be ‘read down’ so that ‘appropriate time’ did not stop industrial action from being included. This was allowed on the basis that ‘appropriate time’ was not a clear and unambiguous phrase seeking to exclude industrial action from the protection. Therefore, it was interpreted accordingly so that industrial action and detriment were linked. 

Practical Lessons

This demonstrates the extent to which Convention rights can be used to modify legislation from a judicial perspective. Whilst this gives rise to interesting debates about the quasi-legislative powers that the judiciary may have it has the power of having a practical effect. The practical effect here is the widening of Section 146 so that it prohibits detriment for industrial action as well as general trade union activities, taken at an ‘appropriate time’. This must be considered when seeking to apply the statute in these contexts. 
https://assets.publishing.service.gov.uk/media/60b754a88fa8f5488fbd793a/Mrs_F_Mercer_v_Alternative_Furture_Group_Ltd_and_Others_UKEAT_0196_20_JOJ.pdf