Mercer v Alternative Future Group Ltd & Anor.

Mercer v Alternative Future Group Ltd & Anor.

Section 146 of TULRCA does not protect workers from detriment short of dismissal for participating in industrial action. The absence of such protection may place the UK in breach of Article 11 ECHR in some cases, but it is not for the courts to legislate to fill this gap under section 3 of the Human Rights Act 1998. Nor is a declaration of incompatibility appropriate where the incompatibility is a legislative omission rather than a specific statutory provision.

Parties
Claimant/respondent: Fiona Mercer; Respondent: Alternative Future Group Limited; Respondent: Ian Pritchard; Intervener/appellant: Secretary of State for Business Energy and Industrial Strategy
Jurisdiction
England and Wales
Judgment Date
24 March 2022
Procedural Posture
Appeal (from Employment Appeal Tribunal) / Court of Appeal Judgment
Outcome
Appeal allowed; Employment Tribunal decision restored
Legal Topics
Trade Union Activities, Industrial Action, Detriment for Union Activities, Interpretation of Statutes, Article 11 ECHR, Human Rights Act 1998
Labour Law Human Rights Law Trade Union Activities Industrial Action Detriment for Union Activities Interpretation of Statutes Article 11 ECHR Human Rights Act 1998

Case Brief

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Parties

Fiona Mercer

Claimant/respondent

Alternative Future Group Limited

Respondent

Ian Pritchard

Respondent

Secretary of State for Business Energy and Industrial Strategy

Intervener/appellant

Procedural Posture

Appeal (from Employment Appeal Tribunal) / Court of Appeal Judgment

Legal Issues

  1. 1 Does section 146 of TULRCA protect participation in industrial action?
  2. 2 Is the lack of protection against detriment for industrial action compatible with Article 11 ECHR?
  3. 3 Can section 146 be read down under section 3 of the Human Rights Act 1998 to provide such protection?

Ratio Decidendi

Section 146 of TULRCA does not protect workers from detriment short of dismissal for participating in industrial action. The absence of such protection may place the UK in breach of Article 11 ECHR in some cases, but it is not for the courts to legislate to fill this gap under section 3 of the Human Rights Act 1998. Nor is a declaration of incompatibility appropriate where the incompatibility is a legislative omission rather than a specific statutory provision.

Court Disposition

Appeal allowed; Employment Tribunal decision restored

Orders

  • Secretary of State's appeal allowed
  • Decision of the Employment Tribunal restored