Mercer v Alternative Future Group Ltd and another UKEAT/0196/20/JOJ

Appeal against the ET’s dismissal of the Claimant’s claim that she had been suspended to prevent her from participating in trade union activities. Appeal allowed.

The Claimant was employed by the Respondent and, at the relevant time, she was a workplace representative for her trade union. Following her involvement in planning and organising a series of strikes, the Claimant was suspended by the Respondent for abandoning her shift on two occasions without permission and for speaking to the press without prior authorisation. Her suspension was lifted less than three weeks later, but she presented a claim to the Tribunal, complaining that, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA"), she had been subjected to a detriment by being suspended to prevent her from participating in trade union activities. The Claimant's case was that the "activities of an independent trade union" within the meaning of section 146 of TULRCA included planning and organising, and participating in, industrial action. The ET dismissed her claim insofar as it was based on her participation in industrial action; and it determined that, in the light of section 3 of the Human Rights Act 1998, it was not possible to interpret section 146 of TULRCA in a way which made it compliant with Article 11 of the European Convention on Human Rights. The Claimant appealed.

The EAT held that the ET was correct to conclude that there was an infringement of Article 11 but wrong to find that it was not possible to read or give effect to section 146 so as to be compatible. Accordingly, the appeal succeeded, and section 146 was to be read as encompassing participation in industrial action.

Published: 14/06/2021 10:42

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