Does taking steps to prepare for, and take part in, industrial action, come within the scope of 'trade union activities'?
Yes, held the EAT in Mercer v Alternative Future Group Ltd.
Mrs Mercer is a member of the UNISON trade union. There was a trade dispute between support staff and their employer about payments for sleep in shifts. Strikes were called and Mrs Mercer was involved in planning and organising part of them. She also gave an interview in which she stated she would be taking part.
Mrs Mercer was suspended, she claimed, because of her involvement in organising the strikes. The tribunal dismissed her claim on a preliminary argument. It decided that case law from the late 1970s meant that that 'trade union activities' did not include preparing for or taking part in strike action. That would involve a breach of Mrs Mercer's right to freedom of association under Article 11 ECHR, but that the Trade Union and Labour Relations (Consolidation) Act 1992 ('TULRCA') could not be read any other way under the Human Rights Act 1998. As a result, preparing for a strike was not a trade union activity.
Allowing Mrs Mercer's appeal, Mr Justice Choudhury said:
"the [European Court of Human Rights] regards any restriction, however minimal, on the right to participate in a trade union-sanctioned protest or strike action as amounting to an interference with Article 11 rights. That supports... [the] contention that the failure in the UK to confer protection against action short of dismissal for participating in strike action similarly amounts to an infringement of the Claimant's Article 11 rights [to freedom of association]...
"In my judgment, there is nothing to suggest that the "grain" of the legislation is to exclude protection against detriment for those participating in industrial action."
TULR(C)A was therefore read down under s3 Human Rights Act 1998 to include protection against detriment for taking part in or preparing for industrial action.
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.