'A victory for every employee' | 'Rogue bosses' can no longer punish staff for striking, Supreme Court rules

'Rogue bosses' can no longer punish staff for striking, Supreme Court rules

Employers will no longer be able to discipline their staff for taking part in legal strike action, the UK’s highest court has warned, following what's been described as "the most important industrial action case for decades".

The Supreme Court made the judgement this week following a two-day hearing which took place in December 2023, when the workers’ union Unison fought to overturn an earlier Court of Appeal decision, which the union had argued left the UK in breach of international law and striking employees without proper protection.

Supreme Court judges were scathing of the government’s failure to provide the minimum protection UK workers should have been granted.

“If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves. Nor is it clear what legitimate aim a complete absence of such protection serves,” the judgement ruled.

“In the context of the scheme of protection that is available, it is hard to see what pressing social need is served by a general rule that has the effect of excluding protection from sanctions short of dismissal for taking lawful strike action.”

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UK law prevents employers from sacking employees who take legal strike action, but until this new ruling, there was no protection for anyone being punished by employers in any way which was not a sacking – quiet firing, for example.

Unison, which took the case on behalf of care worker Fiona Mercer, says the government must now act quickly to change the law and ensure no other employees are treated unfairly.

The legal battle has come to an end after nearly four years. Fiona Mercer had originally taken a case against her then employer, Alternative Futures Group (AFG), a North West charity based, to an employment tribunal in 2020.

She had been involved in a dispute over AFG’s plans to cut payments to care staff who did sleep-in shifts. Fiona’s employer wasn’t happy, singled her out, suspended her and barred her from going into work or contacting colleagues during the action.

Fiona’s case wound up at an employment tribunal in 2021, which found in her favour. It said UK law must protect her from being victimised for going on strike.

That should have been it, says Unison, as the charity had then decided it wasn’t prepared to proceed any further.

But the then-business secretary Kwasi Kwarteng intervened and took the case to the Court of Appeal, which subsequently decided to reverse the tribunal decision in March 2022.

Unison took the case to the highest court in the land, and this led to the new judgment handed down.

Unison general secretary Christina McAnea said: “This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done.

“Rogue bosses won’t like it one bit. They’ll no longer be able to punish or ill-treat anyone who dares to take strike action to try to solve any problems at work.

“No one strikes on a whim. There are many legal hoops to be jumped through first. But when a worker decides to walk out, they should be able to do so, safe in the knowledge they won’t be victimised by a spiteful boss.

“The government must now close this loophole promptly. It won’t cost any money and isn’t difficult to do. Today is a day to celebrate.”

Fiona Mercer said: “I’m delighted at [the] outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff. If they single strikers out for ill-treatment, they’ll now be breaking the law.”

'Significant legal victory’

Chris Syder, employment law partner specialising in industrial relations at Penningtons Manches Cooper, said: “The Supreme Court has handed down a significant legal victory to Unison and the UK trade union movement.

“Employers can no longer treat workers detrimentally for taking part in industrial action. The current law is incompatible with the UK’s international legal obligations.

“This decision will have a significant bearing on industrial relations in the UK for years to come. It amends law dating back to the early 1980’s. The ability for an employer to subject their staff to a ‘detriment’ – such as the loss of earning overtime or being disciplined – for the purpose of preventing or deterring their participation in a union-organised industrial action has been curtailed.”

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