The claimant, as a trade union representative, had been involved in organising a series of strikes.  During a strike period the claimant was suspended from work and disciplinary proceedings were brought against her.  The respondent suggested the claimant had twice abandoned her shift without permission and spoke to the press about strike action without any permission or authorisation.  The disciplinary action took its course, and the claimant was given a written warning.  The claimant subsequently brought proceedings under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 which relates to detriment suffered as a result of trade union membership or activities.

The issue in this case related to the interpretation of activities of an independent trade union.  The claimant argued that it included both the organisation of and partaking in industrial action.   The Tribunal, at first instance, stated that it did not extend to participating in industrial action.  The EAT, however, disagreed with this stating that an ordinary interpretation of the statute may not allow for such an extension but it should be interpreted in a wider sense considering the protection afforded under Article 11 of the European Convention on Human Rights (Freedom of Assembly and Association). The Secretary of State intervened and appealed the decision of the EAT to the Court of Appeal.

On the impact of Article 11 of the ECHR, the Court of appeal stated that under Section 146 ‘activities’ of a trade union would ordinarily include participation in or the organisation of official strike action.  However, it could not be examined in isolation.  Within the 1992 Act, Industrial Action is dealt with in a separate part of the legislation.   Therefore, Section 146 did not apply to industrial action and did not protect against detriment short of dismissal.    The European Court had examined this through the prism of Article 11 where it had been held that detriment other than ‘no work, no pay’ would be regarded as a contravention.  The Court did acknowledge that the failure to have legislative protection in place relating to detriment could put the UK in breach of its obligations under Article 11 of the ECHR.   The issue in this case was the extent to which the 1992 Act should be interpreted.

The Court acknowledged that there were various policy considerations to be taken into account as to the extent of protection against detriment. This related to the protection given to official action and unofficial action as well as matters relating to the types of detriment where the individual should be protected.  The Court held that where there are such sensitive policy issues it is best to leave the matter to Parliament.  To use Section 3 of the Human Rights Act 1998 to widely interpret Section 146 of the 1992 Act would be an inappropriate use of judicial power and would be tantamount to creating judicial legislation.   Additionally, it was not appropriate to issue a declaration of incompatibility under Section 4 of the 1998 Act on the basis that the domestic law only gave a ‘lacuna’ rather than being specifically incompatible.  Therefore, the appeal was allowed, and the decision of the first-instance Tribunal restored.

Practical Lessons

This case demonstrates the difficulties that can arise in ensuring domestic law is compliant with the ECHR.   The EAT sought to use the powers under Section 3 to widely interpret domestic legislation yet the Court of Appeal shied away from this suggesting that it would be making judicial legislation.  When it comes to the 1992 Act it does leave the law in a place where an individual taking part in industrial action can be subject to detriment short of dismissal without recourse in domestic proceedings.  The idea that it is a mere ‘lacuna’ seems to be odd considering that it has a real-life effect on those who have suffered a detriment and does seem at odds with the jurisprudence of the European Court of Human Rights. 
https://www.bailii.org/ew/cases/EWCA/Civ/2022/379.html

A review of the EAT decision is available here.