Unlock the Editor’s Digest for free
Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.
UK trade union law breaches workers’ rights as it fails to protect them against sanctions short of dismissal when they take strike action, the country’s highest court has found.
In a landmark ruling, the Supreme Court said on Wednesday that the law as it stands “encourages and legitimises unfair and unreasonable conduct” by employers and was incompatible with the European Convention on Human Rights. The UK ratified the ECHR in 1951.
The panel of five judges were ruling on a case brought by Unison, the UK’s biggest union, on behalf of Fiona Mercer — a care worker whose employer suspended her when she became involved in a dispute over cuts to payments for sleep-in shifts.
An employment appeal tribunal found in Mercer’s favour in 2021. Although her employer planned to take no further action, then business secretary Kwasi Kwarteng took the case to the Court of Appeal, which overturned the appeal tribunal’s ruling by finding against Mercer.
The unanimous ruling by the Supreme Court, which said there was a “complete absence” of protection against sanctions short of dismissal, means the government will have to decide whether to legislate to close what unions describe as a “loophole”.
While workers who lose their jobs for striking can sue for wrongful dismissal, Lady Ingrid Simler said in the judgment on Wednesday that employers’ ability to impose sanctions short of dismissal “nullifies the right to take lawful strike action”.
She said: “If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves.”
Unison after the ruling urged the government to “act quickly and change the law” to ensure no other employees were treated unfairly. But despite the judgment, lawyers said any changes to legislation would be up to parliament.
Alan Bogg, a professor in law at Bristol university who was also part of Unison’s legal team, said that while the government “was not under a legal duty to respond”, it would be “constitutionally surprising” if it did not.
The Department for Business and Trade did not immediately respond to a request for comment.
The ruling comes at a pivotal time over workers’ rights. A wave of industrial action in the public sector led the Conservative government to rush through stringent anti-strike laws — which Labour, the main opposition party, has pledged to repeal if it wins the election expected this year.
Christina McAnea, Unison’s general secretary, said the Supreme Court had determined the “most important industrial action case for decades”.
Paul Nowak, general secretary of the Trades Union Congress, described the ruling as a “monumental victory” for the UK union movement and a “crushing defeat” for strike laws.
The government has already suffered a defeat to legislation intended to curb walkouts, after the High Court struck down a measure allowing employers to hire agency workers to replace striking workers.
Unions are also challenging recent legislation that could force some staff to cross picket lines to keep key services running during industrial action.
Wednesday’s ruling would not affect these debates about the UK’s overarching framework for industrial action, Bogg said, but it could lead to legislative changes that would stop employers imposing disproportionate penalties on staff who joined strikes.
At present, workers are protected from dismissal but an employer “can do pretty much anything else with impunity”, he said, adding that many university lecturers involved in recent walkouts had suffered “very, very significant deductions from pay”, going beyond the work they had withheld.
Nicholas Le Riche, partner at law firm BDB Pitmans, said the judgment “conclusively confirms that employers can’t disincentivise individuals from taking lawful industrial action”.
However, he said it would be “for the government to introduce legislation to correct the position, which in reality will mean that any changes in the short term will depend on whether Labour wins the next election”.
