Things have been quiet on the blog for a while, apologies for this – life has a way of getting in the way of best laid plans!

My last post was on whether the Supreme Court’s decision in Mercer was a victory for workers as some union briefings suggested – I doubted that saying:

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!

As if to prove the point a group of Royal Mail and CWU workers – totalling 540 claims have had their claims struck out our partially because they have no reasonable prospect of success – Rodriques & Ors v Royal Mail Group Ltd (2024).

These claimants all alleged that because of their participation in CWU industrial action their employer, Royal Mail, had subjected them to pay related detriments. The employer sought to strike out the trade union detriment cases of the claimants (a smaller number also have unauthorised deductions cases) on the basis that the claims had no reasonable prospect of success. The basis of that application was that, following the Supreme Court’s decision in Mercer, the Tribunal did not have the jurisdiction to consider the case because it was not allowed to consider whether the treatment was because of the claimants’ participation in the strike.

Unsurprisingly, lawyers acting for CWU did not disagree with Royal Mail’s argument about reasonableness of the case. However, what is interesting is that CWU pushed this to a judgment, this was explained in the judgment itself:

Although the CWU claimants do not dispute the substance of the respondent’s application, and do not oppose it, they nonetheless seek a reasoned judgment striking out the claims because the claimants are considering an application to the European Court of Human Rights (ECHR) against the UK Government, which would include a claim for a breach of Article 11 and 6 of the European Convention of Human Rights (the Convention). In particular, the claimants note that a claim which is the subject of an application to the ECHR must first have been brought in the domestic forum. Moreover, article 35 of the Convention requires all domestic remedies to have been exhausted prior to an application to the ECHR.

We can be confident that new legislation will be forthcoming to remedy the problems the Court found in Mercer. However, the tantalising prospect intimated in CWU’s submission in this case raises is that the the past Government’s failure to ensure that trade union members who are subject to a detriment for having participated in industrial action is an interference with its Article 11 obligations.