UK: Trade Unions and Industrial Action: Protection from Detriment for Striking Workers
Authors: Ruth Bonino, Corinna Harris, Chris Holme, and Sophie Jackson
The Supreme Court (the UK’s highest court) has found that the statutory provision which prohibits an employer from subjecting a worker to a detriment short of dismissal for taking part in the activities of a trade union (section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992), does not provide protection from detriment short of dismissal to workers participating in lawful strike or other industrial action.
Protection is limited to activities which are outside working hours or within working hours with the employer’s consent. Industrial action will almost always be carried out during working hours to have the desired effect and it would be very unusual for an employer to consent to industrial action. This means that workers do not currently have statutory protection against sanctions short of dismissal where they take part in lawful strike action during working hours.
However, the Supreme Court concluded that the fact that workers do not have this protection is not compatible with Article 11 of the European Convention on Human Rights, which protects freedom of assembly and association and includes the right to strike. The Court found that it was not possible for it to read the legislation in a way which would be compatible.
As a result, the Court issued a declaration of incompatibility stating that section 146 is incompatible with Article 11. It is now for the UK parliament to decide what steps to take in light of the declaration of incompatibility, including whether and if so, how, to amend the legislation.
Key Action Points for Human Resources and In-House Counsel
Despite this decision, employers should continue to exercise caution around taking action against striking workers (other than by withholding pay during strike action, which is allowed). This is to manage various legal and practical risks. However, action short of dismissal is no longer an automatic “no” following this decision (at least at the moment). We are of course ready to assist and advise in relation to any specific issues.
Parliament may well legislate to introduce new statutory protections for workers participating in industrial action, and it is likely that a future Labour government would do this sooner rather than later.
