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UPDATE: Trade Union Striking

As we noted in our January 2024 article, judgment was expected in the spring in Trade v Mercer, an appeal brought by a care worker. The Supreme Court was deciding whether it is lawful for an employer to sanction an employee for taking part in industrial action without breaching their human rights.

Ms Mercer was suspended from her duties in response to arranging industrial action and prevented from working or contacting colleagues. She brought a claim for the loss of pay for overtime she lost out on due to being suspended. Her claim was brought under Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA), in particular s.146, which states that no detriment should be faced by striking. 

In the judgment handed down on 17 April 2024, The Supreme Court unanimously allowed the appeal to the extent that it makes a declaration that section 146 TULRCA is incompatible with article 11 ECHR.

This means that employers will not be able to discipline employees for taking part in strike action. UNISON, acting on behalf of Ms Mercer have called for the government to act quickly to update laws to protect employees. While employees are protected for being sacked due to strike action currently, this has not extended to protection from unfavourable treatment.

Posted on 05/09/2024 by Ortolan

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