Managing Strike Action, The New Ruling Explained
In a landmark ruling, the Supreme Court has established a pivotal precedent: employees cannot be penalised for participating in lawful strike action. This ruling marks a significant shift in legislation, heralded as one of the most consequential industrial action cases in decades. Union leaders and legal experts alike are hailing it as a “sea change” in the landscape of workers’ rights.
Prior to this ruling, while UK law prevented employers from dismissing employees engaged in legal strike action, there was no protection for workers facing punitive measures short of dismissal for striking. The Supreme Court’s judgment declared that existing legislation, under the Trade Union and Labour Relations (Consolidation) Act, is incompatible with provisions within the Human Rights Act. It highlighted the failure of the law to safeguard workers against sanctions other than dismissal, intended to discourage or penalise participation in lawful strike action.
The case at the centre of this ruling stemmed from a dispute involving care worker Fiona Mercer and her former employer, charity Alternative Futures Group. Mercer had contested the organisation’s plans to reduce payments to care staff for sleep-in shifts. Following her involvement in the dispute, Mercer was suspended and barred from work, prompting an employment tribunal in 2021, which ruled in her favour.
However, the subsequent intervention of business secretary Kwasi Kwarteng led to the Court of Appeal overturning the tribunal decision in March 2022. Subsequently, with support from UNISON, the case proceeded to the Supreme Court.
The judgment emphasised the crucial importance of protecting workers’ rights to strike without fear of reprisal. Mercer expressed her delight at the outcome, emphasising its potential impact on employers’ behaviour towards their employees. Christina McAnea, general secretary of UNISON, hailed the ruling as a victory for workers’ rights, asserting that it would deter “rogue bosses” from mistreating employees engaging in industrial action.
Yvonne Gallagher, a partner at Harbottle & Lewis, highlighted the loophole in existing legislation, which left workers vulnerable to sanctions short of dismissal. While the ruling does not provide an immediate remedy for affected employees, it underscores the expectation for legislative amendments to align with human rights provisions.
Kelly Thomson, employment partner at RPC, underscored the significance of the ruling for employers, urging proactive measures to navigate this new legal landscape. As strike action continues to rise, employers must ensure constructive communication with union representatives to mitigate the risk of costly litigation and commercial losses.
Looking ahead, the implications of this ruling extend beyond the courtroom. With a general election on the horizon, the direction of legislative change in this area remains uncertain. A potential shift in government could further reshape workers’ rights, underscoring the need for businesses to adapt to evolving legal frameworks.
In navigating these changes, organisations can turn to the HLTH Group, which offers support with HR and staffing matters. By staying informed and proactive, businesses can uphold the rights of their workforce while navigating the complexities of industrial relations in the modern era.