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Mercer -v- Alternative Future Group Ltd & ors

Thursday 27 January 2022

The Secretary of State for Business, Energy and Industrial Strategy appeals from the order of the Employment Appeals Tribunal (EAT) (Choudhury J) sealed on 4/6/21 allowing the appeal by the Claimant against the Employment Tribunal’s (ET) decision that C’s claim of unlawful detriment on trade union grounds under s.146 TULR(C))A 1992 for having been disciplined in strike action should be rejected.

The case raises an important issue as to whether the right to freedom of association under Art 11 ECHR precludes an employer from taking detrimental action against workers who go on strike.

The EAT found that s.146 of the 1992 Act, as interpreted by domestic law, permitted action to be taken against such workers but thereby provided insufficient protection to striking workers to ensure compliance with Art 11.

The EAT went on to read down s.146 under s. 3 of the Human Rights Act 1998 so as to provide for a new prohibition on employers taking any detrimental action against workers participating in industrial action.

The Secretary of State submits that the EAT erred in law in that the limited protection provided by s. 146 ,read with other protections to striking workers, is compatible with Art 11, striking a fair balance between the rights of employers and workers.

View hearing:

Part 1

Part 2