I have covered the Mercer case twice on this site (here and here). The facts are that a union member helped organise a strike that was supported by the union. Later the employer imposed a disciplinary warning on the employee for that act. The union member complained this was a breach of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Without going into detail the issue in the case was whether the legislation, which included a stipulation that protected “trade union activities” cannot include strike action was consistent with a worker’s right to freedom of association under article 11 ECHR. The EAT found it was not and, purporting to interpret the legislation consistently with the ECHR, enlarged the scope of section 146 to include protection for workers from detriment when the actions included authorised strike action.

The employer did not appeal the judgment but, unusually, the Department of Business, Energy and Industrial Strategy appealed on its own as the department of State responsible for the legislation.

Although there had been no findings of fact in the case (the chain of appeals had been caused by a preliminary hearing on jurisdiction before the substantive hearing) the Court of Appeal accepted that the legal protection offered may well place UK law in breach of article 11 ECHR: We conclude that the failure to give legislative protection against any sanction short of dismissal for official industrial action against the employees who take it may put the United Kingdom in breach of article 11 even in the case of a private sector employer, if the sanction is one which strikes at the core of trade union activity.

Recognising this fact the Court of Appeal, to use non-legal language bottled it. It found that the EAT’s amendment was was an error of law in that it “would result in impermissible judicial legislation and not interpretation as sanctioned by section 3 of the 1998 Act (the Human Rights Act 1998). This, said the Court of Appeal, is a issue best left for Parliament to resolve.

And so, the Court of Appeal overturned the EAT’s decision and we are not back to a position where the UK law allows an employer to impose a disciplinary sanction upon a worker for taking part in lawful and official strike action just so long as they don’s go so far as dismissing them for it.

That is a scandalous position to be in. I can only imagine that this is an issue Unison will be pursuing further to the Supreme Court and, potentially the ECHR. I certainly hope so.