We previously reported about the case Secretary of State for Business and Trade vs Mercer,  a care sector worker and trade union representative that was suspended by her employer, Alternative Futures Group Ltd, after participating in a strike.

The Employment Appeal Tribunal (EAT) initially found UK trade union legislation incompatible with Article 11 of the European Convention on Human Rights (ECHR), which protects the freedom of assembly and association. However, the Court of Appeal reversed this decision, emphasising that only Parliament has the authority to resolve such sensitive issues, clarifying that, while dismissals related to industrial action are explicitly prohibited, the law does not necessarily preclude other types of employer-imposed sanctions.

Her legal challenge highlighted the lack of statutory protection against such employer actions, leading to the Supreme Court's declaration that Section 146 of TULRCA is incompatible with human rights standards set out in Article 11, which protects the freedom of assembly and association, including the right to form and join trade unions.

The Court's decision underscores a significant judicial acknowledgement that the absence of protection against detriments short of dismissal hampers the effective exercise of the right to strike. This poses a direct challenge to employers who might consider disciplinary actions against employees participating in strikes other than the pay deduction for the strike period. Employers should review their disciplinary and grievance procedures to ensure they do not penalise employees unfairly for participating in lawful industrial actions.

The ruling also encourages a fairer approach to managing labour relations, emphasising the need for a balance that respects both employer interests and workers' rights, with heightened sensitivity and adherence to legal standards.