UK employers will no longer be able to discipline their staff for taking part in legal strike action after a UK Supreme Court ruled yesterday that the UK breached its duties over the right to take part in lawful strikes.

Employees who are dismissed for taking part in lawful strike action have some statutory remedies for unfair dismissal; however, there is no express statutory (or other) protection in domestic law against action taken by an employer short of dismissal for participation in lawful strike action.

The question in the appeal case is whether section 146 of. The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) can be interpreted to provide such protection, and if not, what is the consequence.

The judgment follows a two-day hearing in December. UK Union Unison took the case to the Supreme Court to overturn an earlier Court of Appeal decision. The union had argued this had left the UK in breach of international law and striking employees without proper protection.

The appellant, Fiona Mercer, was employed as a support worker in the care sector by a care services provider, Alternative Futures Group Ltd. (AFG) As a workplace representative of Unison, she was involved in planning and took part in lawful strike action. She was subsequently suspended by AFG. While suspended, Mercer received normal pay but was unable to earn pay for the overtime she would otherwise have worked.

Mercer originally brought a claim in 2020 against AFG under section 146 of the Trade Union and Labour Relations Act 1992 that she had suffered detrimental treatment done for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union "at an appropriate time” or penalising her for having done so.

Her case wound up at an employment appeal tribunal (EAT) in 2021, which found in her favour. It said UK law must protect her from being victimised for going on strike. The case was then taken to the Court of Appeal after then business secretary Kwasi Kwarteng intervened, which subsequently decided to reverse the EAT decision in March 2022.

In its judgement yesterday, the Supreme Court said it had to consider whether the absence of any protection in TULRCA for workers taking part in lawful industrial action against detriments short of dismissal is compatible with article 11 of the European Convention on Human Rights. The cases decided by the European Court of Human Rights demonstrate that, although the right to strike is protected by article 11, it is not a core right, nor is it absolute.

The Supreme Court now found that section 146 of the Trade Union Labour Relations Act is incompatible with Article 11. This is because it fails to provide any protection against sanctions short of dismissal, which are intended to deter or penalise workers from taking part in lawful strike action organised by their union.

In the judgement, which saw five justices at the Supreme Court unanimously ruling the UK had breached its duties, Lady Simler found the law had a “complete absence” of protection against sanctions short of dismissal intended to deter or punish trade union members from taking part in lawful strikes.”

Mercer said yesterday, “I’m delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff. If they single strikers out for ill-treatment, they’ll now be breaking the law.”

Unison general secretary Christina McAnea said, “This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done. Rogue bosses won’t like it one bit.”

McAnea said, “No one strikes on a whim. There are many legal hoops to be jumped through first. But when a worker decides to walk out, they should be able to do so, safe in the knowledge they won’t be victimised by a spiteful boss.”

Trades Union Congress general secretary Paul Nowak also welcomed the ruling, describing it as a “monumental victory”.

Nowak told the Press Association, “Judges have been clear as day. UK law fails to protect workers from bad bosses who punish staff for exercising their right to strike. It breaches international law. This government is racking up embarrassing legal defeats over its attacks on the right to strike, after the High Court recently ruled its strike-breaking agency worker regulations were illegal.”

Last week, Unison in Barnet (Barnet Unison), a trade union for Barnet council workers and outsourced services, announced that amid strike action, its mental health social workers received an email from the director of adult social care stating that he had engaged the services of agency workers supplied by staffing firm Flex 360.