Last reviewed 10 June 2021

A judgment by the Employment Appeal Tribunal (EAT) in a case taken by care worker Fiona Mercer against the Alternative Futures Group (AFG) has been described by her union as an important victory.

Employers will no longer be able to get away with mistreating any employees who take part in union-organised workplace disputes following the decision, UNISON said.

The full text of the EAT ruling can be found here.

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

She was then disciplined, suspended and prevented from going into work by her employer, the EAT was told.

A Manchester employment tribunal had said that, although the Trade Union Labour Relations (Consolidation) Act 1992 was not compatible with international human rights law, it would not be taking further action.

UNISON appealed and the EAT has now found in Ms Mercer’s favour.

The EAT president said that UK law was not compliant with international law, and has added wording to the 1992 Act so that striking workers are now protected.

UNISON general secretary, Christina McAnea, said: “Good employers have nothing to fear from today’s judgment. But those who’ve been treating staff unfairly because they’ve taken strike action will need to beware. Until now, employers have used a loophole in UK law to pick on workers who’ve taken part in disputes, safe in the knowledge that nothing will happen to them. Now they’ll no longer be able to”.

Comment by Kate Palmer, HR Advice and Consultancy Director at Peninsula

It is already an existing provision in law that an employee can claim for unfair dismissal if their employment is terminated for taking part in most strikes. This judgment by the EAT, however, means that employers need to be cautious about how they deal with these issues even if dismissal is not the result.

This is because, as has now been made clear by the courts, sanctioning employees for participating in industrial action can translate to employers infringing on their right to participate in trade union activities.

It is therefore advisable for employers to hold consultations with employees and allow them to express their concerns and negotiate suitable solutions.