A couple of weeks ago the Supreme Court issued its decision in the case of Secretary of State for Business and Trade v Mercer [2024], a case that began life as Mercer v Alternative Future Group Ltd. Since the EAT decision it has been the UK government who have been arguing against the recognition of right not to be subject to actions short of dismissal for striking workers. I have posted on the Mercer case three times before: here, here, and here (and this may not be the last!)
In one of my earlier posts on the Mercer case I made the perhaps over-confident prediction the Supreme Court would sort out the mess, they didn’t. In legal terms they made a declaration of incompatibility under the Human Rights Act 1998. In non-legal terms they have taken a mallet to the structure of Trade Union protection in its current version, gathered and bundled up the shattered remains and sent this to Parliament with a note saying “Rishi, we found this and thought of you, please sort it out”.
In the aftermath, many commentators have labelled the judgment a victory for workers and a defeat for the Government. I am not convinced by that line of argument; it is certainly true that the decision is much better than it could have been. After all, the Court could have found section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (Trade Union Act) was compliant with Article 11.
I am not going to go into the case in detail as I want to come back to this issue in a blog-series on strike related protections but the essential fact of the case is a Unison rep helped to organise and took part in a strike. Her employer did not sack her for this (that would have been an automatically unfair dismissal) but did decide to issue her with a formal warning and suspended her. The claimant challenged that decision saying it was a detriment for taking part in trade union activities viewed generally (which of course it was) but the case was lost on a preliminary issue that strikes are excluded from the statutory definition of “trade union activities”.
All the appeals on this case (at the EAT, Court of Appeal and now SC) related to whether the relevant legislation was consistent with the Freedom of Association in Article 11 of the ECHR (European Convention on Human Rights). The decision of the Supreme Court is that, as it is currently drafted, section 146 of the Trade Union and Labour Relations (Consolidated) Act 1992 does adequately not protect UK workers from detrimental treatment from employers for exercising their right to strike as Article 11 of the ECHR. But the judgement is not really an employment law decision but a human rights one and so an unusual diversion for this blog into constitutional and human rights law is required.
A Brief Primer on the Human Rights Act and Legislation
To understand the Mercer decision a basic understanding of constitutional law/arrangements is required, especially the idea of primary legislation and parliamentary supremacy.
Primary and Secondary Legislation
In the UK there are two types of legislation the Government passes: primary and secondary legislation. At the risk of significantly oversimplifying primary legislation is legislation in which Parliament (House of Commons and Lords) passes and receives royal assent. This then becomes an Act of Parliament. There is quite a lengthy process of readings and back and forth before proposed primary legislation (called a Bill) becomes law, (and so becomes an Act). By contrast secondary legislation is a process where the Government implements an order in Parliament (usually because an Act allows them to do so) is assumed will become law at a certain date unless Parliament expressly objects. Secondary legislation are usually called “Statutory Instruments” or “Orders”.
Parliamentary Supremacy
Unlike the situation in the USA, the UK Supreme Court has no power to to overturn and make inapplicable any piece of Primary legislation. In normal (common law) a court can view an Act of Parliament has wrpng-headed, offensive, and discriminatory but it has no power to declare it void, the only (legal) way is to hope Parliament itself overturns the unjust law. With a few complications (there are convoluted legal arguments on the extent the EU membership and devolution has affected this which are not relevant to this post) that has been the essential legal position from 1689 (the date of the Bill of Rights 1689) to 1998 in respect of primary legislation. The position of secondary legislation is less straightforward but basically while a court cannot rule Primary Legislation as invalid the court can rule that secondary legislation is invalid. The 2017 decision of the Supreme Court on employment tribunal fees is an example of this; because the law was found in secondary legislation (Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893) it could be ruled to be invalid – had that same provision been found in primary legislation the court would have had no power to rule it invalid because of the principle of parliamentary sovereignty – however much it may have wanted to.
Human Rights
The UK has been a signatory of the European Convention on Human Rights since inception and subject to the jurisdiction of the European Court of Human Rights (ECtHR). As at 1998, if someone believed the UK law did not protect human rights they could make a complaint to the ECtHR who could rule that the UK was in breach of its obligations to protect the human rights of those under its jurisdiction. Crucially however, if the UK did not like a judgment it could not be legally compelled to do so in domestic (UK) law.
In 1998 the then Labour Government passed the Human Rights Act 1998 (HRA), which came into effect in October 2000. The HRA had a huge effect on how the Court dealt with disputes about primary legislation. Importantly however, even though the HRA undoubtedly gave the courts more power to scrutinise primary legislation if did not change or alter the principle of parliamentary supremacy (because the extra powers were conferred by Parliament to the Court in the HRA). Before and after the HRA, no UK court could declare primary legislation invalid.
What the HRA did do was impose two new powers give courts some tools to more flexibly interpret legislation on the basis that it is assumed that Parliament did not intend to enact legislation that was inconsistent with its human rights obligations. The two main tools were:
- Section 3 of the HRA imposing an obligation on the court to, “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Even if the natural reading of primary legislation suggests a different approach if the court can interpret primary legislation in line with human rights obligations then that is what it must do.
- Section 4 gives the court the power (but not necessarily the obligation), if it cannot interpret interpret legislation in a way consistent with human rights protections to make a “declaration of incompatibility.”
Importantly, however – if the Court do make such a declaration this has no effect whatsoever on the primary legislation which it has found to be inconsistent with the State’s legal obligations (Section 4(6) HRA).
So, what’s that got to do with the case in Mercer?
At the Supreme Court Unison argued that:
- Section 146 of the the Trade Union Act was inconsistent with the Government’s obligations under Article 11 of the ECHR (the freedom of association), and
- That the legislation could be interpreted in a way consistent with the human rights obligations under Article 11.
The Court agreed on Unison’s first argument but disagreed on the second. This is important because, had it agreed on the second point as well then from that point on every trade union member would have had the legal protection against being penalised for taking part in or encouraging the taking part in industrial action.
However, the Supreme Court instead made a declaration of incompatibility which means that the claimant actually lost her case against her employer (under section 4(6)(b) HRA) and the law remains valid, live and unchanged until such time as Parliament passes an amendment to make it compliant which under the principle of parliamentary supremacy it does not need to do.
Although it is true that the Court found against the government, the claimant has still lost her case because she could not meet the statutory requirements of the Trade Union Act. If Ms Mercer were to make her claim again today the outcome would be the same, despite the media claims of victory. Even more importantly, even after the Mercer decision nearly any employer can still impose a detriment on striking workers so long as it does not dismiss them and know it will be safe from successful challenge because the law (section 146 of the Trade Union Act) remains unchanged. Given that is the legal reality after the Supreme Court’s decision I struggle to describe the judgment as a resounding victory for workers and trade unions!
Readers may notice I said “nearly any employer” will be safe from challenge. One of the reasons the court found a declaration was necessary was because employees of private (non-state) employers cannot make a complaint of a breach of Article 11 because that needs to be a complaint against a public authority (like a local authority or government department). For the time being, if a worker is placed to a detriment because of strike action and they are a worker for a public authority then they may still have a remedy by making a complaint of an article 11 breach in court (not employment tribunal).
So, what next?
I do not expect the government to take any attempt to legislate to change primary legislation any time soon, especially given the likelihood of a General Election in the next few months. Even after all the noise of press reports on the case the legal reality is not really changed and because of the principle of parliamentary supremacy will not be until (if they do) Parliament decide to change for law to account for the Supreme Court’s decision.
If the delay is for any period it is possible that the claimant, Unison, or other persons could pursue a complaint to the ECtHR, but that can itself take years and, as the Prisoner Votes saga shows even an adverse decision against the UK can take years to resolve itself and solve the underlying denial of rights.
So, is the Supreme Court’s decision a victory or a case of limbo? A bit of both I think, but with an unfortunately heavy dose of limbo.
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