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UK tribunal closes “loophole” allowing employers to discipline unionised workers
02/06/2021
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Public Sector Workers Protest in Lancaster

Disciplinary action taken against workers who engage in union-organised workplace disputes are unlawful, the UK’s Employment Appeal Tribunal (EAT) has ruled today closing a “loophole” in the nation’s labour law.

The Trade Union Labour Relations (Consolidation) Act 1992 had previously prevented employers from terminating staff involved in strike action or other workplace disputes, but not from disciplining them.

Backed by public sector union Unison, the case before the EAT was brought by care worker Fiona Mercer against her employer, North-West-based charity Alternative Futures Group (AFG).

Mercer had been involved in organising, and subsequently took part in, a long-running dispute over AFG’s plans to cut payment for sleep-in shifts undertaken by its care staff.

Mercer was disciplined, suspended, and prevented from going into work by her employer, a tactic that dissuaded many other care workers from taking part in the strike action, according to Unison.

The union and Mercer took the charity to an employment tribunal in May 2020, where it was argued that Article 11 of the European Convention on Human Rights confers a qualified right to freedom of association and assembly, protecting workers involved in legal disputes against their employer and participation in trade union activity.

Unison told the tribunal that Article 11 protections, which was incorporated into UK law via section 3 of the Human Rights Act 1998, also applies to disciplinary action or mistreatment linked to the industrial action.

Although the tribunal found that section 146 of the 1992 Act was not compatible with international human rights law, it decided it was not possible to read or give effect to the section to make it compatible.

Allowing the appeal, EAT president Mr Justice Choudhury agreed with the tribunal that UK legislation was not compliant with international law but found it was wrong not to read or give effect to section 146 so as to be compatible.

“The appeal succeeds and section 146 is to be read as encompassing participation in industrial action,” he concluded.

Unison general secretary Christina McAnea said the EAT’s decision was an important victory for UK workers and a warning for those who treat their staff unfairly.

“Employees don’t actively seek to get involved in disputes at work. But staff are often left with little other option when employers behave badly,” she said.

“Until now, employers have used a loophole in UK law to pick on workers who’ve taken part in disputes, safe in the knowledge that nothing will happen to them. Now they’ll no longer be able to.”

Michael Ford QC and Stuart Brittenden of Old Square Chambers was instructed by Unison, while Devereux’s Peter Edwards was instructed by DWF on behalf of AFG; 11KBW’s Daniel Stilitz QC was instructed by the Secretary of State for Business Energy and Industrial Strategy, an intervenor in the appeal.