Detriment short of dismissal

For many years, unions have been challenging the absence under UK law of any statutory protection for striking workers from detriment short of dismissal taken by an employer to deter them from striking, or to penalise them if they go ahead and participate in the strike. The law provides some limited protection from dismissal during the first 12 weeks of lawful industrial action, but until now, there has been no legal protection from detriment short of dismissal.

This was highlighted during the British Airways dispute of 2009-11, when the airline punished striking cabin crew by withdrawing valuable travel privileges which were not reinstated when the dispute ended.

Since then, the European Court of Human Rights has issued clear rulings — in particular in cases against the Turkish state — that sanctioning a worker to deter or punish them for engaging in lawful industrial action is a breach of Article 11, ECHR.

The EAT has now held, in the case of Mercer v Alternative Future Group Ltd and another [2021] UKEAT/0196/20, that section 146 TULRCA, which provides protection for workers from detriment short of dismissal for engaging in lawful trade union activities at an appropriate time, must be read to include time when the worker is taking part in industrial action (see Chapter 5).