written for Free Our Unions
Unison legal challenge wins decision that workers have the right to strike without detriment
The UK Supreme Court ruled on Wednesday 17 April that UK law allowing employers to discipline (but not sack) workers for striking is in conflict with the European Convention on Human Rights (ECHR).
The judges stated that, “If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves” and added that “it is hard to see what pressing social need is served by a general rule that has the effect of excluding protection from sanctions short of dismissal for taking lawful strike action”.
The ECHR is incorporated into UK law by the Human Rights Act 1998. The usual course following a judgment such as this is that the UK government will table a ‘statutory instrument’ to Parliament to correct the conflict – in other words, to specify in UK law that it is unlawful for employers to discipline workers in any way for taking part in official industrial action.
However, it is possible that a Tory government worrying that its days are numbered may decide not to do this – as there is no legal requirement for it to do so – or may decide instead to repeal the ECHR provisions or even the whole Human Rights Act. Right-wingers have frequently called for this, often on the basis of spurious (and racist) arguments about ‘foreign criminals’.
Until UK law is amended to comply with today’s judgment, employers are still allowed under UK law to discipline strikers, although any striker disciplined can take a case to the European Court of Human Rights. However, this is a lengthy process. Today’s judgment concludes a case that has taken four years.
Trade union Unison took the case to employment tribunal in 2020 on behalf of its member, care worker Fiona Mercer. The union won the initial court case, but while the employer was willing to accept the result and not appeal, the Tory government appealed and succeeded in overturning the tribunal decision. Today’s judgment overturns the appeal result and restores the original decision.
Unison reported that the Supreme Court judges were “scathing of the government’s failure to provide the minimum protection UK workers should have been granted”.
Fiona had been involved in a dispute her employer, north-west-based charity AFG, over its plans to cut sleep-over payments.
UNISON general secretary Christina McAnea said: “This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done.
Fiona Mercer said: “I’m delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff. If they single strikers out for ill-treatment, they’ll now be breaking the law.”
The full text can be found here.
