Bringing the Right to Strike Home: Secretary of State for Business and Trade v Mercer – Part 1 – Oxford Human Rights Hub

‘Individual strikers are protected from dismissal where they are dismissed for participating in “protected” (i.e lawful and official) industrial action, under s. 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). However, there are many ways in which employers can penalise individual strikers other than through dismissal, such as through demotion, suspension, fines, disciplinary warnings, and disproportionate pay deductions. In Secretary of State for Business and Trade v Mercer, the Supreme Court considered if a worker proposing to strike was protected from “detriment” under TULRCA 1992, s. 146. This was because it concerned her participation in the “activities of an independent trade union”. The Supreme Court concluded that strike action was excluded from s.146, principally because it was not “at an appropriate time” [44]-[45]. This meant that there was no statutory protection for the claimant, Ms Mercer, who (on the assumed facts) had been suspended for activities connected to a lawful and official strike. The effect of this was to create a zone of impunity for employers engaged in the selective victimisation of individual strikers.’

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Oxford Human Rights Hub, 10th May 2024