UNISON vows fightback after legal decision backs bosses over staff who strike

Application being made to Supreme Court

Bad employers will feel emboldened to mistreat employees who participate in union-organised workplace disputes due to the government’s intervention in a legal case, says UNISON.

The union says the Court of Appeal (CA) judgment gives bosses the green light to discipline staff who strike. UNISON is now applying to the Supreme Court in a bid to overturn the decision and protect the rights of working people.

The long-running case began in 2019 and was taken by care worker Fiona Mercer against the Alternative Futures Group (AFG).

She had been involved in organising, and subsequently took part in, a long-running dispute over AFG’s plans to cut payment for sleep-in shifts undertaken by its care staff.

UK law had previously prevented employers from sacking staff involved in strike action or other workplace disputes, but not from disciplining or making life difficult for them.

Fiona was disciplined, suspended, and prevented from going into work by her employer. AFG’s heavy-handed tactics meant she and many of her care worker colleagues were put off from taking part in the strike action, says UNISON.

Fiona had originally taken North West-based charity AFG to an employment tribunal in Manchester in April 2020.

There the union argued on behalf of Fiona that Article 11 of the European Convention on Human Rights – incorporated into UK law by the Human Rights Act 1998 – protects workers who take industrial action against their employer. UNISON said this meant they should not be disciplined or treated unfairly in some other way, because they had taken part in industrial action.

The tribunal disagreed although it found the Trade Union Labour Relations (Consolidation) Act 1992 was incompatible with international human rights law.

UNISON supported Fiona’s appeal, and an employment appeal tribunal (EAT) found in her favour. The EAT President said that UK law was not compliant with international law and added wording to the 1992 Act to protect striking workers.

However, the business secretary Kwasi Kwarteng – rather than the employer – took the case to the Court of Appeal, which overturned the EAT decision. The government’s intervention means that a loophole in protection for striking workers continues, says UNISON.

Commenting on the decision, UNISON general secretary Christina McAnea said: “Bad bosses will be rubbing their hands with glee. This backwards step gives employers the green light to target staff who stand up to them.

“Employees only get involved in disputes at work as a last resort. But they often have little other option when employers behave badly.

“The court should have been much bolder, particularly after its own judgment said that a failure to protect striking workers could put the UK in breach of international human rights law.

“P&O Ferries’ appalling sacking of hundreds of workers demonstrates that UK employment law is no deterrent.

“The effect of this decision will be that employees will be fearful of challenging unfair treatment. The government should be protecting their rights, not undermining them.”

Notes to editors:
– The Court of Appeal judgment is here.
– UNISON is the UK’s largest union, with more than 1.3 million members providing public services in education, local government, the NHS, police service and energy. They are employed in the public, voluntary and private sectors.

Media contacts:
Anthony Barnes M: 07834 864794 E: a.barnes@unison.co.uk