UK Supreme Court Declares Section 146 of Trade Union And Labour Relations Act Incompatible with European Convention on Human Rights

The UK Supreme Court held that a portion of the UK's trade union laws is incompatible with the European Convention on Human Rights (ECHR). The ruling, handed down on Wednesday, pertains to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which was held to violate Article 11 of the ECHR, guaranteeing the right to freedom of assembly and association.

Brief Facts:

The case before the UK Supreme Court centred around Fiona Mercer, a support worker and representative for the workers union 'UNISON', who challenged the compatibility of UK trade union laws with international human rights standards. Mercer's involvement in a strike in 2019 led to her suspension by her employer, prompting her to challenge the legality of Section 146 of the TULRCA. The contention before the court was whether Section 146 adequately protected workers from detrimental treatment short of dismissal, as guaranteed by Article 11 of the ECHR.

In her appeal, Mercer argued that Section 146 of TULRCA failed to provide sufficient safeguards for workers exercising their right to engage in industrial action. She contended that the absence of explicit protections against sanctions short of dismissal left workers vulnerable to unfair and unreasonable treatment by employers. Mercer's legal team, representing UNISON, argued that the legislation, as it stood, violated the fundamental right to freedom of assembly and association enshrined in Article 11 of the ECHR.

Observations by the Court:

The Supreme Court held that Section 146 of TULRCA failed to strike a fair balance between the interests of workers exercising their trade union rights and those of employers and the wider community. The legislation lacked sufficient safeguards to prevent employers from taking adverse actions against employees involved in lawful strike activities, such as suspension or withholding of pay, without facing repercussions. It held that Mercer faced suspension and loss of overtime pay for her involvement in strike action, despite taking place within her rights as a union member and organizer.

The court's decision builds upon previous rulings, including a Court of Appeal judgment in 2022 that identified the potential incompatibility of Section 146 with human rights law but stopped short of making an official declaration. The Supreme Court, however, diverged from this stance and explicitly declared Section 146 incompatible with Article 11 of the ECHR.

Lady Simler, delivering the judgment, emphasized that the absence of protection against sanctions short of dismissal for lawful strike action undermined the essence of the right to freedom of peaceful assembly and trade union activity guaranteed by international human rights standards.

Furthermore, the court highlighted the importance of providing adequate legal protections for workers engaging in strike action to ensure the effectiveness of their rights.

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