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Does s146 Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA) protect workers who take part in strikes during working hours from detriment short of dismissal?

No, held the Supreme Court in Mercer v Alternative Fuel Group UK law is incompatible with Article 11 of the European Convention on Human Rights (right to freedom of association) 

The Claimant was a UNISON workplace representative and an employee of the Respondent. The Respondent suspended her on basic pay (resulting in a loss of overtime pay) and gave her a written warning after she was involved in planning and taking part in lawful strike action. She brought a claim under s146 TULRCA claiming detriment short of dismissal for organising and participating in strike action.

The case got all the way to the Supreme Court. The Supreme Court held:

- s146 TULRCA did not provide protection for detriment short of dismissal for taking part in or organising industrial action, because s146 only covered industrial action OUTSIDE of working hours. So the Claimant could not bring her claim under s146.

- this lack of protection encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of the Convention.

- it wasn’t possible to interpret s146 in a way which was compatible with Article 11.

- this meant that UK law was incompatible with Article 11.

The Supreme Court exercised its discretion to issue a declaration of incompatibility, holding that ‘section 146 is incompatible with article 11 of the Convention’. It will now be down to Parliament to consider legislative amendments to bring the UK into line in this area.