The case was about a support worker for health and social care charity company, who was involved in organising and participating in a series of strikes over pay, and was interviewed by the press about the industrial action and then suspended by the employer.

She alleged the decision had been taken for the sole or main purpose of punishing her or preventing or deterring her from taking part in trade union activities.

The law provides various protections for employees taking part in industrial action or other trade union activities, such as an absolute ban on employers dismissing an employee because they have taken part in protected industrial action. However, there is no explicit ban on subjecting employees to other measures.

According to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers are only prohibited from subjecting a worker to detrimental treatment for taking part in trade union activities if those activities take place at an ‘appropriate time’ (outside of working hours or during working hours with the employer’s consent).

The Employment Appeal Tribunal (EAT) stated UK trade union legislation was incompatible with Article 11 of the European Convention on Human Rights (ECHR) on the freedom of assembly and association.

The Court overturned the decision, concluding that only Parliament, and not Courts, can determine such sensitive matters.

On the basis of this decision, employers may now consider taking other actions in addition to dismissal, but still adopting a very cautious behaviour. Both the Tribunal and the Court found that the current level of protection of employees is unsatisfactory and potentially violates their human rights under the ECHR.

Therefore, they remain potentially at risk of future legal action.

You can read a decision on a dismissal related to industrial action in South Africa in this article.