The curious incident of the UK Supreme Court's decision in Mercer

Abstract

This article considers the reasoning and importance of the UK Supreme Court's decision in the case of Mercer. Fiona Mercer had disciplinary action taken against her, resulting in her suspension from work but not her dismissal, due to her involvement in industrial action. This largely progressive decision highlights the lack of protection in UK domestic law for workers who have action short of dismissal taken against them in such circumstances, and its failure to protect workers’ convention rights under Article 11. This article considers the reasoning of the case in detail and discusses why each of the appellate courts reached a different decision when applying their duties under the Human Rights Act 1998 (HRA) to the facts. It concludes that the HRA offers a lack of protection where there is a lacuna in the law rather than one specific offending provision that can either be interpreted in a convention-compliant manner or declared as incompatible.

1. Introduction

This is a discussion of the curious incident of the UK Supreme Court's (UKSC) decision in Mercer; in which a trade union representative and employee was disciplined and suspended, ostensibly for organising and taking part in lawful strike action. The case considers whether there is any protection offered by TULRCA ¹ for workers who have disciplinary action short of dismissal taken against them as a result of their involvement in industrial action. It focuses on the breadth of s146 TULRCA, which curiously offers protection to employees but only for taking part in ‘trade union activities’ and only at an ‘appropriate time’, i.e. outside of working hours (which is not commonly when industrial action takes place).

The appellate level decisions in this case render Mercer a series of curious incidents. First, the Court of Appeal, despite identifying a breach of workers’ rights under the European Convention on Human Rights (ECHR; hereinafter: ‘convention rights’) in the drafting of TULRCA, did nothing to manufacture a solution, leaving the Supreme Court to reconsider each of the issues.

Mercer ² has been subject to a series of contradictory decisions as it has passed through the appellate courts. The eventual outcome in the Supreme Court is favourable to employees. However, it does contain some contradictions in reasoning of its own. The route taken by this case perhaps demonstrates the lack of full guidance handed down so far on the use of sections 3 and 4 Human Rights Act 1998 (HRA) by the higher courts when interpreting legislation in a convention-compliant manner, leading to an inevitable inconsistency of approach.

This article will consider the factual background of Mercer, the reasoning of the courts in deciding whether TULRCA protected the claimant, if not whether there was a breach of her convention rights and whether UK law could or should be read in a convention-compliant manner ³ or a declaration of incompatibility made. ⁴ Finally, it will go on to briefly consider the guidance provided in Mercer and the government's plans to amend the legislation and fill the perceived lacuna in TULRCA.

2. Background facts

Fiona Mercer was employed as a support worker by a health and social care charity, and also acted as a trade union representative. Following a dispute over the level of pay for sleep-in shifts, she helped organise and then took part in a strike. Her employer deducted her pay for the period of strike action, but then went further. It took disciplinary action, including suspending the claimant from work for leaving her shift without permission and also for speaking to the press without prior authorisation. Although paid during her period of suspension, she lost the opportunity to work her usual overtime.

The claimant brought a claim against her employer pursuant to s146 TULRCA, complaining that she had suffered detrimental treatment due to taking part in trade union activities. The employer's only or main purpose, she said, had been to deter her from taking part in such activities. If she were not protected by domestic law in these circumstances, then her convention rights under Article 11 ECHR had not been protected.

3. Background law – the protection offered by TULRCA

Section 146 TULRCA protects a worker from being subjected to any detriment by any act of their employer for the sole or main purpose of preventing or deterring them ‘from taking part in the activities of a trade union at an appropriate time’ ⁵ . The proposition that the claimant had been subjected to a detriment was accepted by the Supreme Court. ⁶ Not because of the failure to pay during the strike period; domestic authority is clear that a striking worker is not entitled to be paid for work not carried out (‘no work, no pay’) ⁷ and the Employment Appeal Tribunal (EAT) could find no support in ECtHR authority or from the ILO for this proposition ⁸ , but rather due to the suspension.

However, for s146 protection to apply, a worker must be taking part in trade union activities. The Supreme Court found that taking part in industrial action is not included in this definition. Although ‘read in isolation and as a matter of ordinary language … (s146) is apt to include’ such participation, ‘the phrase cannot be read in isolation’ but only in the context of relevant authority. ⁹ The relevant domestic authority on this point ¹⁰ is clear and difficult to contradict. S170 TULRCA, although providing worker rights in a different context, also expressly defines trade union activities as excluding industrial action.

Similarly, industrial action does not usually take place at an ‘appropriate time’, which is defined in s146 as being outside working hours or at a time agreed with the employer. The legislative scheme was clearly intended to include times when a worker is carrying out primary contractual duties which, by definition, does not include strike action. ¹¹

Section 152 TULRCA only protects employees against dismissal for taking part in trade union activities at an appropriate time, which again has an identical definition to s146. Sections 238 and 238A TULRCA also offer protection (if somewhat limited) for employees from dismissal when taking part in industrial action. These sections could not apply in this case as there had been no dismissal. Effectively, TULRCA leaves a claimant with no domestic protection from detriment short of dismissal due to taking part in strike action.

4. Does the TULRCA 1992 legislative scheme infringe a worker's Article 11 rights?

Article 11 ECHR on the freedom of assembly and association is a qualified right; restrictions can be placed under the state's margin of appreciation, provided these are justified as being ‘prescribed by law and are necessary in a democratic society’. It also does not expressly protect the right to strike. However, the European Social Charter ¹² (ratified by the UK) does recognise the right to strike, along with other international agreements referred to by the European Court of Human Rights. ¹³

Section 2 HRA provides that a court must take into account - although it is not bound by - the decisions of the ECtHR when determining a question that has arisen in connection with a convention right. ¹⁴ As long ago as 1976, ¹⁵ the ECtHR found that the granting of a right to strike represented ‘without doubt one of the most important’ safeguards in protecting trade union members’ rights. ¹⁶ In the NURMT case the ECtHR again emphasised that strike action ‘is clearly protected by article 11’, but would not go so far as to say that it was an essential part of the right. ¹⁷

The importance of whether a right is essential follows the ECtHR decision in Demir ¹⁸ that the court will not accept restrictions affecting the ‘essential elements of trade union freedom’. Each of the appeal courts in Mercer, from the EAT to the Supreme Court, ¹⁹ therefore accepted that although important, the right to strike was not an essential part of the right to assembly. This affected the breadth of the margin of appreciation afforded the state and the restrictions that might be justifiably placed on this right.

Admittedly, in Mercer only a disciplinary action for taking part in strike action was considered, and not a complete ban on the right to strike. However, the ECtHR in Ognevenko found that restrictions on Article 11 rights embraces ‘measures taken after such rights have been exercised, including various disciplinary measures’. ²⁰

The appeal courts spent some time considering whether the margin of appreciation was wide or narrow, and therefore how much freedom the state had. The EAT had felt it was narrowed by being direct industrial action rather than secondary action. However, the Supreme Court held, seemingly taking much inspiration from the RMT case, ²¹ that although strike action was protected, the terms ‘core’ and ‘essential’ were largely interchangeable and this was not core but ‘secondary’ action. ²² It held also that the Strasbourg courts had recognised a difference of treatment following interference by a public sector employer rather than a state's positive obligation to ensure these rights were protected for private sector workers. ²³ These made the margin of appreciation much wider, and therefore justification for interference by the state much easier.

Commentators have argued that the concepts and terminology were not correctly used here. Davies states that there ‘are “core” and “accessory” elements within the right to strike’. ²⁴ Bogg has also argued that ‘core’ and ‘essential’ are different concepts. ²⁵ This difference has since been recognised by the ECtHR in Humpert. ²⁶ The responsibility of the state is also engaged whether or not directly as an employer or from a failure on its part to secure convention rights under domestic law. ²⁷ Indeed, in Sindicatul, the ECtHR made clear that the principles to be applied are ‘similar’ and do not vary in substance, whether or not the state is the employer. ²⁸

It has been clarified further by the ECtHR in Demir that a convention right must be interpreted and applied in a manner which renders its rights ‘practical and effective, not theoretical and illusory’. ²⁹ The Supreme Court therefore held that however wide the margin of appreciation, it is ‘never unlimited’. The employer's right to take any sanction at all short of dismissal ‘nullifies the right to take lawful strike action’. It ruled that it was not clear what legitimate aim a complete lack of protection served, and there was no pressing social need met by this general rule. ³⁰ Therefore, a progressive decision was handed down eventually by the Supreme Court, in finding the UK to be in breach of its positive convention obligations.

5. Can section 146 be read in a convention-compliant manner utilising S3 HRA 1998?

Once a decision has been made that domestic law does not provide the necessary convention protections, s3 HRA 1998 requires that the courts ‘must’ consider if the offending provision can be ‘read and given effect’ in a convention-compliant manner. Although the consideration is mandatory, the giving effect is not; s3 qualifies that this should be done only ‘so far as it is possible to do so’.

Courts must be careful to avoid taking part in judicial legislation, particularly when considering a fundamental change in the law with societal impact that requires careful deliberation on ‘complex and sensitive issues’. This should only be carried out by Parliament. ³¹

The courts also follow the ‘mirror principle’, whereby they will only progress convention rights incrementally. They should follow the guidance handed down by the ECtHR and in a novel situation, only seek to reach a decision that they feel the ECtHR would have taken in their place. ³² This process has been criticised as not allowing for a required correspondence between domestic courts and ECtHR, and therefore not allowing for the development of convention rights without expensive trips to Strasbourg. ³³ Nevertheless, it must be the correct approach, as to do otherwise would allow a court to interpret legislation in a way it sees fit and override the primacy of parliament, ³⁴ as well as damaging legal certainty. ³⁵

The primary guidance for courts in interpreting s3 is provided by Ghaidan. Parliament has expressed its will in the HRA that all legislation, past and present, be read in a compliant manner, and it was accepted in Ghaidan that this leads to some ambiguity, as it is only ‘where possible’. ³⁶ The power is not simply to interpret ambiguous wording, but may require departing from both unambiguous wording and the intention of the parliament which enacted the legislation. ³⁷ Still, this power does not permit courts to adopt a meaning ‘inconsistent with a fundamental feature’ or thrust of the legislation. ³⁸ It must not go against the grain of the legislation.

In Mercer, the EAT felt that it was able to read the legislation in a manner that was compatible. It is worth noting that in much of the authority where s3 could not be used, the provision(s) were expressly contradictory to convention requirements and demonstrated deliberate legislative intent. ³⁹ In Mercer, the courts identified a lacuna, a gap in the legislation, not a directly contradictory provision. Perhaps, following Ghaidan, s146 could therefore have been read in a compliant manner, ‘reading in words’ to make it convention-compliant. ⁴⁰ However, the attempt made by the EAT was simply not very good; missing a requirement for industrial action to be lawful and contradicting rights under s238A. ⁴¹

The possibility of interpreting s146 in a compliant manner was rejected both by the Court of Appeal and the Supreme Court, partly because both courts felt that it was impermissible judicial legislation. The Court of Appeal was insistent that there was a lacuna in the law to be filled, a legislative scheme existed and there were many possible ways of drafting new rights that were convention-compatible, which required parliamentary consideration. ⁴² It was also unclear whether every situation of detriment should be protected, perhaps explaining the Court of Appeal's rejection of the EAT's attempts at interpretation.

The Supreme Court agreed that there was not a single, obvious legislative solution that would ensure compliance with convention rights while maintaining an appropriate balance between competing interests. ⁴³ To change the wording as proposed would contradict a fundamental feature of the legislation. Sections 146 and 152 TULRCA include the requirement of activities ‘at an appropriate time’ and so are clearly not designed to deal with industrial action. The legislative scheme contained protection against dismissal under ss237 and 238, and any change to s146 would contradict the decision of Parliament to limit the protection contained in these sections. ⁴⁴

6. In the alternative, should a s4 declaration of incompatibility be made?

Where a court determines that legislation is incompatible with convention rights then ‘it may make a declaration of that incompatibility’. ⁴⁵ It is not required to, and Lord Steyn stated that a declaration of incompatibility is a ‘measure of last resort’, ⁴⁶ as in most cases the court will be able to read the legislation compatibly.

As the final court of appeal, the Supreme Court arguably should make a declaration in these circumstances ‘to formally record’ that the law is presently incompatible. ⁴⁷ By itself, the declaration leads to no change in the law ⁴⁸ or remedy for the claimant. Indeed, in Burden the Grand Chamber considered that the procedure could not be considered an effective remedy, as it ‘placed no legal obligation on the executive or the legislature to amend the law’. ⁴⁹ The incompatibility can be corrected by either primary legislation or the use of the Ministerial power under s10 HRA 1998 to summarily amend.

Surprisingly, perhaps, despite finding that the domestic law was not convention-compliant and not being able to read the legislation down under s3, the Court of Appeal also felt unable to make a declaration under s4. Why? A declaration might not be made where corrective legislation has been proposed (to allow time for this to be completed), ⁵⁰ but this was not the case here.

The Court of Appeal said quite simply that a declaration was inappropriate because ‘there is a lacuna in the law rather than a specific legislative provision which is incompatible…the extent of the incompatibility is unclear and, the legislative choices are far from being binary questions’. ⁵¹ The wording of s4 and authority ⁵² points to this being the correct interpretation. Perversely, when faced with a lacuna in legislation, the HRA itself contains a lacuna in protection.

The Supreme Court accepted, as we have seen, that there was a lacuna in TULRCA, and that to read s146 in a compatible manner would affect legislative cohesion. It also accepted that the wording of s4 required there to be an identifiable offending legislative provision. Yet it still felt able, perhaps due to simple pragmatism, to overrule the Court of Appeal and make a s4 declaration stating that the complaint concerned s146, and this section had an ‘implicit effect’ of legitimising sanctions. ⁵³ The Supreme Court itself seemed to admit the likelihood of inconsistency in approach and declined to take the opportunity to provide future guidance, admitting that the circumstances in which a court should refrain from making a declaration had ‘not yet been catalogued’ and, unhelpfully, the wide variety of circumstances ‘make it difficult to identify particular considerations favouring one course over another’. ⁵⁴

What proposals have since been made for change? Despite its criticism in Burden, the Grand Chamber acknowledged that until that point, in all cases where a declaration had been made, steps had been taken to amend the offending legislative provisions. ⁵⁵ Mercer is no exception, and the Employment Rights Bill, currently being debated in Parliament and expected to receive royal assent in October 2025, proposes under s59 a new s236A TULRCA which shall deal with detrimental treatment short of dismissal. Further secondary legislation will also come into force following consultation. ⁵⁶

7. Conclusion

Mercer goes some way to highlighting the weaknesses of the HRA in protecting workers’ convention rights. The power under s3 is wide-ranging, but as the Court admitted in Ghaidan, s3 is itself not free from ambiguity, ⁵⁷ and when faced with a lacuna in the legislative regime, and therefore various options in respect of interpretation, it is difficult for a court to act without straying into judicial legislation. It is also far more difficult in these situations to make a declaration of incompatibility, as the Court is faced with a gap in the legislative scheme rather than one offending provision. This may lead to further curious incidents in interpretation in the future.