Mrs F Mercer v Alternative Future Group Ltd and 1 other — 2020

This was a preliminary hearing on an assumed-facts basis. The tribunal was asked whether the claimant’s section 146 TULRCA complaint, read with Article 11 ECHR, could include protection for participation in lawful industrial action. The claimant said her suspension on 26 March 2019 was imposed to deter or penalise her for trade union activities connected with the strike dispute over sleep-in payments.

On domestic construction, the tribunal held that section 146 does not extend to any form of industrial action. It treated Drew v St Edmundsbury Borough Council as binding authority and relied on the structure of TULRCA, including the distinction between Part 3 trade union activities and Part 5 industrial action. It also noted the separate treatment of industrial action in sections 152, 170 and the Part 5 dismissal provisions, and rejected the suggested reading that consent could be inferred or that the statute could be rewritten so as to treat strike participation as protected section 146 activity.

On the Convention argument, the tribunal accepted that the right to strike forms part of Articles 10 and 11, and that the ECHR authorities relied on by the claimant showed that sanctions imposed by a state employer to deter lawful strike participation may breach Article 11 and Article 13. However, it held that section 3 HRA could not be used to read section 146 in a way that contradicted the fundamental feature of the legislation, namely the distinction between trade union activities and industrial action. The result was that the claimant could continue her section 146 case only so far as it concerned alleged detriment for planning and organising industrial action, not for actual participation in it.