March 24
The claimant, a health worker and union representative, was employed by the respondent charity. Following a dispute over payment for sleep-in shifts, the union called a series of strikes which the claimant helped to organise and in which she intended to participate. When she was suspended for leaving her shift without permission and speaking to the press without prior authorisation, she presented a claim to an employment tribunal that she had suffered a detriment on grounds relating to trade union activities, contrary to section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, alleging that the main purpose of the suspension was to prevent or deter her “from taking part in the activities of an independent trade union at an appropriate time” or to penalise her for so doing. By its defence, the respondent asserted that the suspension was unrelated to any union activities and that taking part in industrial action was not an activity protected by section 146. At a preliminary hearing to determine whether, in the light of articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the activities protected by section 146 extended to participation in lawful industrial action by a member of an independent trade union, the tribunal found that, as a matter of ordinary language, participation in industrial action as a trade union representative might be regarded as part of the activities of a union, but that, in the light of domestic authorities, the proper interpretation of section 146, consistent with section 152, was that industrial action was outside the scope of the section. The tribunal, while finding that the failure of section 146 to confer protection against detriment for participating in industrial action amounted to a breach of article 11, held that it was not possible to use the interpretive function under section 3 of the Human Rights Act 1998 to read section 146 compliantly with article 11, as that would be inconsistent with the underlying grain of the legislation, and the complaint was dismissed. On the claimant’s appeal against that decision the Secretary of State for Business, Energy and Industrial Strategy was granted permission to intervene. The claimant’s appeal was allowed by the Employment Appeal Tribunal. The Secretary of State appealed.
On the appeal —
Held, appeal allowed. The phrase “activities of an independent trade union” in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 could not be read in isolation. When construed as part of the Act as a whole, industrial action was not included within the phrase “activities of an independent trade union”. In particular, industrial action was dealt with in Pt V of the Act whereas all other trade union activities were covered in Pt III. Moreover, to be effective, industrial action normally took place during working hours which was not within the definition of “appropriate time” in section 146. It followed, on ordinary principles of statutory interpretation, that section 146 did not provide protection against detriment short of dismissal for taking part in or organising industrial action. Accordingly, although the Act provided limited legislative protection against dismissal for employees taking part in official or lawful industrial action, there was no protection for those taking unofficial industrial action or for those subjected to detriments short of dismissal when taking official industrial action. That failure to give legislative protection might put the United Kingdom in breach of article 11 of the Human Rights Convention, even in the case of a private sector employer, if the sanction was one which struck at the core of trade union activity. The legislation, taken as a whole, failed to afford adequate protection and contained a lacuna so that the question whether it could be read down to be given a Convention-compliant meaning, in accordance with the established principle that legislation should be so read down wherever possible subject only to the modified meaning being consistent with the fundamental features of the relevant legislation, fell to be considered. In the present case a number of policy questions were engaged: whether protection against detriment should be given to all industrial action or only to official industrial action called by the trade union following the requirements of Part V of the Act; whether the protection against detriment short of dismissal should extend to long-running official industrial action; and whether article 11 required protection to be given against every form of detriment, at any rate in a private sector case, In such a highly sensitive area, those issues of policy were best left to Parliament. Adding a sub-clause to section 14 would result in impermissible judicial legislation rather than interpretation as sanctioned under section 3 of the Human Rights Act 1998. Nor would it be appropriate to grant a declaration of incompatibility under section 4 of the 1998 Act where there was a lacuna in the domestic law generally rather than a specific statutory provision which was incompatible, the extent of the incompatibility was unclear and the legislative choices were far from being binary questions. Accordingly, the decision of the employment tribunal would be restored (paras 51–54, 62–63, 68, 70–72, 73–77, 81, 85–86, 88–89).
Daniel Stilitz QC and Hannah Slarks (instructed by Treasury Solicitor) for the Secretary of State.
Michael Ford QC and Stuart Brittenden (instructed by Unison Legal Services ) for the claimant.