Where does the Supreme Court’s decision in Mercer leave us in terms of the law on union-related detriment? Charles Pigott reports
- The Supreme Court has declared trade union detriment legislation incompatible with the European Convention on Human Rights.
- It has departed from the Court of Appeal in granting what is believed to be the first ever declaration of incompatibility in the field of employment law.
Secretary of State for Business and Trade v Mercer [2024] UKSC 12, [2024] All ER (D) 64 (Apr) represents the final stage in a dispute about the interpretation of s 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992).
Section 146 creates a right for workers not to be subjected to a detriment for, among other things, taking part in trade union activities ‘at an appropriate time’. Appropriate time is defined as outside working hours, unless the employer agrees to the relevant activities taking place inside working hours (s 146(2)).
All parties agreed that a literal interpretation of this provision would preclude protection against detriment for taking part in industrial action,
