Ian Allinson provides an update to Workers Can Win following a Supreme Court ruling over detriment (disadvantage) short of dismissal.
In Workers Can Win (pages 33-4) I wrote:
There is legal remedy (compensation) for dismissal or detriment for
trade union activity as long as it is carried out ‘at an appropriate time’,
which means either in your own time or when the employer has agreed to it.
There is a Supreme Court appeal in the pipeline against the Court of Appeal
overturning case law that participating in industrial action is covered as
union activity.
The good news is that Fiona Mercer, a care worker and UNISON workplace rep at Alternative Futures Group, has won at the Supreme Court (case ID 2022/0080) against the Secretary of State for Business and Trade, who had taken up the issue when the employer didn’t.
The law against dismissal for taking part in lawful industrial action is clear, in sections 237 to 238A of the Trade Union and Labour Relations (Consolidation) Act 1992, known as TULRCA. But these sections don’t deal with detriment (disadvantage) short of dismissal. Instead workers have tried to rely on section 146 of TULRCA which deals with detrimental treatment for the sole or main purpose of preventing or deterring a worker from taking part in the activities of an independent trade union at an appropriate time, or penalising them for doing so. The Supreme Court ruled that we can’t rely on section 146, primarily because ‘an appropriate time’ means outside working hours or with the employers’ permission, and industrial action is therefore not at an appropriate time. So far, so bad.
The Supreme Court recognised that TULRCA’s failure to ‘protect’ workers from detriment short of dismissal was incompatible with article 11 of the European Convention on Human Rights (ECHR), which covers Freedom of assembly and association. This means that the UK government will have to bring forward new legislation to meet the requirements of article 11. They have considerable leeway as to what that legislation will look like, but it’s great news that the Supreme Court has confirmed our right not to suffer detriment short of dismissal for taking part in industrial action.
As ever, workers’ best protection is sticking together, not relying on the law.