The claimant, a care worker and union representative, was employed by the respondent charity. Following a dispute, the union called a series of lawful strikes, which the claimant helped to organise and in which she intended to participate. When she was suspended for leaving her shift without permission and speaking to the press without prior authorisation, she presented a claim to an employment tribunal that she had suffered a detriment on grounds relating to trade union activities, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, alleging that the main purpose of the suspension was to prevent or deter her “from taking part in the activities of an independent trade union at an appropriate time” or to penalise her for so doing. By its defence, the respondent asserted that the suspension was unrelated to any union activities and that taking part in industrial action was not an activity protected by section 146. At a preliminary hearing to determine whether, in the light of, in particular, article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the activities protected by section 146 extended to participation in lawful industrial action by a member of an independent trade union, the tribunal found that, as a matter of ordinary language, participation in industrial action as a trade union representative might be regarded as part of the activities of a union, but that, in the light of domestic authorities, the proper interpretation of section 146 was that industrial action was outside the scope of the section. The tribunal, while finding that the failure of section 146 to confer protection against detriment for participating in industrial action amounted to a breach of article 11, held that it was not possible to use the interpretive function under section 3 of the Human Rights Act 1998 to read section 146 compliantly with article 11 and the complaint was dismissed. The claimant’s appeal, in which the Secretary of State for Business and Trade was granted permission to intervene, was allowed by the Employment Appeal Tribunal. However, the Court of Appeal allowed the Secretary of State’s appeal, restoring the employment tribunal’s decision, but declining to grant a declaration of incompatibility, pursuant to section 4 of the 1998, Act on the ground, inter alia, that there was a lacuna in the law rather than a specific statutory provision which was incompatible with article 11.
On the claimant’s appeal—
Held, appeal allowed in part. (1) As a matter of ordinary domestic construction, section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 had been interpreted as not providing protection from detriment short of dismissal to workers engaged in lawful strike action because the words “at an appropriate time” were defined to exclude working time (save where the employer had consented to the activities in question), so that they limited the protection available to activities which were outside working time and/or not inconsistent with the employees’ performance of their primary duties to their employer. That conclusion was reinforced by considering the wider scheme of the 1992 Act, including the limited protection against dismissal available to individuals who participated in lawful industrial action, and the legislative history. Accordingly, section 146 of the 1992 Act did not provide protection against detriment, short of dismissal, for workers taking part in industrial action (paras 3, 44–48).
(2) Under the jurisprudence of the European Court of Human Rights, the right to strike was protected by article 11 but it was not a core right, nor was it absolute. States were also afforded a wider margin of appreciation in the context of regulating relationships between private employers and workers, given the sensitive social and political issues involved. A state’s positive obligations under article 11 did not require it to confer universal protection in all circumstances to all workers against any detriment (however slight) intended to dissuade or penalise them from participating in a lawful strike. However, it did not follow that the state had no positive obligations at all. On the contrary, the legislative scheme had to strike a fair balance between the competing interests at stake and any provision of the scheme that restricted the protection of article 11 rights had to be justified, recognising the margin of appreciation to be accorded to the state. In the present case, the right of an employer to impose any sanction at all, short of dismissal, for participation in lawful industrial action nullified the right to take lawful strike action. If employees could only take strike action by exposing themselves to detrimental treatment, the right dissolved. Seen in that way, section 146 both encouraged and legitimised unfair and unreasonable conduct by employers. Had there been legislation addressing action short of dismissal, it might have been possible to say that a fair balance had been struck by Parliament, given the wider margin of appreciation to be applied. However, the failure to provide any such legislative protection at all put the United Kingdom in breach of its positive obligation to secure effective enjoyment of the right to participate in a lawful strike that was protected by article 11 (paras 81–83, 85–90).
(3) Although section 3 of the Human Rights Act 1998 required that, so far as it was possible to do so, primary legislation had to be read and given effect in a way which was compatible with rights guaranteed under the Convention, that did not enable the court to change the substance of a provision from one where it said one thing into one that said the opposite. In the present case, a Convention compatible interpretation of section 146 of the 1992 Act was not possible and would amount to impermissible judicial legislation rather than interpretation. There was not a single, obvious legislative solution that would ensure compliance with article 11 of the Convention while at the same time maintaining an appropriate balance between the competing rights of employers and their workers in such a politically and socially sensitive context. Moreover, to interpret section 146 in the way proposed by the claimant would contradict a fundamental feature of the legislation that limited the protection given by section 146 to activities which were not inconsistent with the performance of the primary duties owed by the workers concerned to their employer (paras 92–94, 102–108).
(4) Whilst the court was not obliged to make a declaration of incompatibility, and there might be circumstances where, despite a conclusion of incompatibility, it was not appropriate to exercise that power, this was not such a case. Section 146 of the 1992 Act was the only provision which limited the common law in the present context and had the implicit effect of legitimising sanctions short of dismissal imposed for participation in a lawful strike, thereby putting the United Kingdom in breach of article 11 of the Convention. On the assumed facts, the claimant had no means of legal redress in domestic law for the detriments to which she had been subjected. The existence of policy choices in the means of giving effect to the rights protected by article 11 was a reason in favour of making a declaration of incompatibility, not refusing one. Accordingly, a declaration would be made under section 4 of the 1998 Act that section 146 of the 1992 Act was incompatible with article 11, insofar as it failed to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union (paras 116–118, 120–121).
Michael Ford KC and Stuart Brittenden (instructed by UNISON Legal Services) for the claimant.
Daniel Stilitz KC and Hannah Slarks (instructed by Treasury Solicitor) for the Secretary of State.