Employees have some statutory protections when participating in industrial action such as strikes. These employee protections are contained within the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA 1992”) and include protection from dismissal for participation in industrial action, albeit this is subject to certain conditions and qualifications.

In addition, employees are protected from detriments short of dismissal for participating in trade union activities. In Mercer v. Alternative Force Group Ltd and another, the Court of Appeal considered the question of what protection under TULRCA 1992, if any, an employee has from detriment short of dismissal for taking part in or organising industrial action. The Court of Appeal’s answer? None.

General principles

There is no general right to strike in UK law but TULRCA 1992 provides certain protections to employees who do participate in industrial action or other trade union activities. However, this does not mean that employers are prevented from taking any action against such employees.

“No work, no pay”

Participating in most forms of industrial action is likely to be a breach of an employee’s contract of employment. For example, in response to an employee striking an employer will often be entitled to withhold that employee’s pay for the period that the employee is not working. The calculation of the withheld sum is dependent upon a number of factors, including how the employee is paid.Such calculations are not considered in this article.

Dismissal

Even though an employee is likely to be in breach of their employment contract by participating in industrial action, employees are, under certain conditions, protected from dismissal. TULCRA 1992 provides (limited) protection against dismissal for employees taking part in official and lawful industrial action. Subject to certain qualifications and exceptions:

• Where an employee participates in industrial action which is classed as official and protected, any dismissal for doing so will be automatically unfair, if it occurs within 12 weeks of the employee starting to participate in the action.
• An employee has very limited protection if dismissed for taking part in unofficial industrial action. In this situation the employee cannot claim unfair dismissal unless they can show that the reason (or principal reason) for dismissal falls within one of the automatically unfair reasons such as maternity and family leave, health and safety, whistleblowing etc. 
• An employee has slightly more protection if participating in official but unprotected industrial action, for example if the action continues for longer than the 12 week protected period. Here the employee will only be able to claim unfair dismissal if the employer has been selective in deciding which participating employees to dismiss or if the dismissal is actually for one of the automatically unfair reasons above.

Detriment short of dismissal

TULCRA also provides that an employer must not subject its employees to a detriment for the sole or main purpose of deterring them from becoming a member of a union or taking part in the activities of an independent trade union. In this context, does participating in industrial action count as “taking part in the activities” of a trade union?

Section 146 of TULRCA protects an employee from any detriment imposed by their employer for the sole or main purpose of deterring them from taking part in the activities of an independent trade union at an appropriate time. Section 152 protects an employee from dismissal for taking part in the activities of a trade union. Both sections fall within Part III of TULRCA 1992 which deals with union membership and activities. The protection from dismissal for taking part in industrial action is dealt with in Part V of TULRCA 1992. The question for the Court of Appeal was whether employees taking part in industrial action are protected from a detriment short of dismissal under Part III of TULRCA 1992 as well as having protection from dismissal under Part V. This was the question considered in Mercer v Alternative Force Group.

The claimant, had suffered a detriment through being suspended and subjected to disciplinary action for the purpose of preventing or deterring her participation in union-organised industrial action but was not dismissed. The claimant brought a claim seeking protection under s.146 protection.

Initially, the Employment Tribunal held that the employee was not protected under s.146. This decision was then overturned by the Employment Appeal Tribunal who held that claimant could seek protection for detriment short of dismissal under s. 146 of TULRCA even though that section does not explicitly apply to participating in industrial action. 

Overturning the decision of the Employment Appeal Tribunal and restoring the decision of the Employment Tribunal, the Court of Appeal held that, whilst suffering detriment for “taking part in the activities” of a trade union is protected by section 146, that section does not provide protection against detriment short of dismissal for actually taking part in or organising industrial action. The court recognised that industrial action would normally be considered to be trade union activities but, given the way that TULRCA 1992 is arranged, it was clear that they were treated as two separate and distinct situations attracting their own distinct protections. Therefore, organising or taking part in industrial action is excluded from protection under section 146. This means that TULRCA 1992 offers no protection to strikers who face disciplinary measures short of dismissal.

The Court of Appeal went on to comment that the failure of TULRCA 1992 to give legislative protection against any detriment short of dismissal, such as suspension, for employees participating in official industrial action is a gap in protection and may put the UK in breach of Article 11 of the European Convention on Human Rights. Despite acknowledging and identifying the gap, the Court of Appeal held that it is not something which it could remedy. An attempt to fill this gap, by reading words into section 146 of TULRCA 1992, would amount to an impermissible act of judicial legislation.

Therefore, for the time being at least, there is no protection under TULRCA 1992 for an employee who is subject to any detriment short of dismissal as a result of participating in or organising industrial action. However, as the Court of Appeal cautioned that is not to say that English law provides no protection at all against measures short of dismissal. Employers must take into account the possibility of a constructive dismissal claim or a claim based in general contract law when considering how to sanction, but not dismiss, an employee who has participated in or organised industrial action.

This position may well change either as a result of a further appeal, guidance from the European Court of Human Rights or legislative intervention, and employers should remain vigilant for future change. 

Conclusion

Employers should be aware of the various protections afforded to employees in relation to participating in or organising industrial action. The actions that can be lawfully taken by employersare dependent on the facts of the particular scenario. Employees do have limited protection from dismissal for participating in or organising industrial action. However, currently employees have no protection under TULRCA 1992 for any detriment short of dismissal for organising or participating in industrial action. This gap in protection has been recognised by the Court of Appeal and cited as a potential breach of Article 11 of the European Convention on Human Rights.