Last week the Employment Appeal Tribunal decided the Unison backed case of Mercer v Alternative Future Group Ltd. In this case a union rep had helped to organise and took part in a strike for the Unison union, and was disciplined by her employer for having done so, being given a disciplinary warning. The union brought a claim that the employer had placed her at a detriment for having engaged in trade union activities (organising and taking part in the strike). It was accepted by all parties that had the rep been dismissed then this would have been unlawful (under s.152 of the Trade Union and Labour Relations (Consolidated) Act 1992) but what if the sanction was for less than dismissal?

The case is an important one and I will return to it in a later post to explain the decision but, for now, will look specifically at the role of the Department of Business, Energy and Industrial Strategy (BEIS) in the case. Although similarly worded to s.152 the employment tribunal found (reluctantly) that the claimant’s claim could not succeed because s.146 excluded strike action from the “trade union activities” a union member could rely upon. It was not happy with that decision and found that s.146 was inconsistent with the claimant’s article 11 ECHR rights but, nevertheless, that it could not provide a remedy for the claimant.

The EAT considered Unison’s appeal and in the course of doing so heard representations not only from barristers for the union and employer but also for BEIS who had been given permission to intervene in the case. BEIS is the government department responsible for trade union law in the UK, including the 1992 Act under which the case had been brought.

BEIS was represented by the barrister Daniel Stilitz but the arguments put forward were that of the UK Government. At Paragraph 62 of the judgment the EAT summarises one aspect of BEIS’ case (there were others that were not as scandalous):

Mr Stilitz sought to advance the suggestion that there is a legitimate aim in permitting employers to discipline or otherwise penalise employees who have breached their contract by participating in strike action.

As the paragraph goes on it is sometimes appropriate to separate the fact of a worker engaging in strike action (which – sorry for the spoiler – is protected) from tangential actions (such as ‘knocking out’ a worker trying to cross a picket line – which is not protected). But that does not seem to have been the point of BEIS’ submission; instead, it was content that as the law stood (or rather how it argued it stood) it was entirely content that should a worker participate in a lawful strike the employer upon their return could -lawfully – issue them all disciplinary warnings for having done so. That that submission was made by the department responsible for protecting the rights of all workers to engage in the activities and campaigns of their trade unions really is an astonishing and arguably scandalous submission.

Later BEIS went on to argue that this was not really so astonishing as a worker would still have protections from the ACAS Code of Practice on Disciplinary and Grievance Procedures, the argument being summarised as follows:

Mr Stilitz argues that the balance has been struck fairly as there are sufficient protections for
the worker elsewhere. He relies upon the fact that the worker will have the procedural protections
under the ACAS Code of Practice on Disciplinary and Grievance Procedures

As the judgment immediately notes that is worth nothing because

the procedural protections afforded by the Code of Practice would not preclude the detrimental action being taken. It is small comfort to the employee who is subjected to a detriment that the employer followed a fair procedure before imposing it

However, even if the ACAS Code did provide any protection (which is a nonsense) it would still be difficult to see how that was an adequate protection. The ACAS Code only really has any bite (and even then not much) when a claim is pursued, but Mr Stilitz has argued away there being any jurisdiction for such a complaint under s.146 and so the other case likely would be unfair dismissal which would then engage the separate s.152). Alternatively, perhaps an employee could have resigned and claimed constructive unfair dismissal but at its highest the ACAS Code would be of next to zero benefit to any employee who had less than two year’s service as any procedural protections would be irrelevant given that employee’s lack of standing to make the unfair dismissal claim in the first place. The only benefit I can see for an employee is that they could claim up to 25% additional compensation if they pursued a constructive (non unfair) dismissal claim at which they may get 25% added to the most likely one week’s pay – good value for an employer wanting to get rid of union members from their employment!

Thankfully, BEIS’ arguments did not carry the day but the fact that they were seriously made on behalf of the UK Government in the first place should be a concern as to how seriously the UK government really values the rights of trade union members and is committed to ensuring those rights can be exercised.

While trade unionists should worry about the indifference of BEIS’ approach we can be thankful for the work of Unison and its barristers Michael Ford QC and Stuart Brittendon.

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