Summary Description: 

Supreme Court ruling that Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 was contrary to the protections in Article 11 of the European Convention on Human Rights as there was no protection for action short of dismissal relating to those undertaking or organising lawful industrial action. 

Background: 

The claimant was employed as a support worker by a care services provider.  She was a workplace representative for her union, UNISON.   She was involved in planning lawful strike action.   She was suspended on normal pay during the strike action.   The issue was that she did not receive anything for the overtime she would have ordinarily worked.  

This led to an action in relation to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 which failed to give legislative protection against any sanction short of dismissal for participation in lawful strike action.  The Court of Appeal held that such a position may put the United Kingdom in breach of Article 11 of the European Convention on Human Rights (Freedom of Assembly and Association) and that the domestic legislation could not be interpreted in light of it.  The decision was appealed to the Supreme Court.  

Outcome: 

The Supreme Court held that the protection afforded by Section 146 was only limited to activities outside of working hours.  Industrial action, though, by its very nature would take place during working hours.   There was protection against dismissal through Section 152 which was regarded as the ‘sister’ piece of legislation to Section 146.   Section 146, however, did not provide protection against detriment short of dismissal for taking part in or organising industrial action.   The Supreme Court stated that it had to be put against the right in Article 11 which meant that a fair balance had to be struck between the competing interests of employers and workers. The fact that there was no protection for a worker faced with disciplinary action short of dismissal of a lawful strike was found to put the UK in breach of its obligations. 

The Supreme Court found that there could be no way in which the legislation could be interpreted in light of the human rights obligations. As a result, a declaration of incompatibility under Section 4 of the Human Rights Act 1998.  This declaration did not affect the validity of the relevant provisions but put Parliament on notice of the fact that it was not in compliance with their international obligations. 

Practical Guidance for Employers: 

A significant Supreme Court decision relating to protection for those participating or organising industrial action as part of a Trade Union.  The fact the legislation did not provide any protection for action short of dismissal meant that it was contrary to the Article 11 protections.  This could be of significance for those who are facing Trade Union activity in the workplace to have awareness of the fact that there is likely to be additionalprotection coming as a result of the declaration of incompatibility issued by the Supreme Court.  

The full case can be viewed here:
https://www.supremecourt.uk/cases/uksc-2022-0080.html