EAT decision in Mercer –v- Alternative Future Group Ltd increases protection for workers taking industrial action
In a much-anticipated decision, the EAT has delivered a resounding victory for the Claimant by upholding (and indeed improving upon) the ET’s finding that s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (which protects workers against detriment for trade union activities) includes protection for workers taking industrial action.
The problem, historically, was this: union activities were only protected under s.146 if they were carried out “at an appropriate time” – which, if work time was concerned, meant with the consent of the employer. Plainly the employer was not consenting to industrial action!
Ms Mercer was suspended for organising and taking part in industrial action. She brought a claim with the support of her union, Unison.
The ET – and now the EAT – has ruled that the historical restriction is too great an interference with the right to Freedom of Assembly under the European Convention on Human Rights.
The ET did not however feel that it could do anything about it.
The EAT has taken the next step, ruling that s.146 has to be interpreted as if it included protection for industrial action.
In a similar case, Morais v Ryanair DAC, an ET came to the same conclusion as the EAT in Mercer. That is due to be heard on appeal in Autumn ’21 but there must now be some optimism that Mercer has settled the position.
This represents a really important new safeguard for workers taking industrial action.
It is particularly interesting for the legal anoraks among us, because for the first time the EAT had before it a set of authorities from Europe that had previously only been available in French and Turkish. Experts were able to provide the EAT with English translations which goes to show the importance of having the backing of a union in these cases (since otherwise this approach would likely have been unaffordable).
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