Lack of protection from detriment for participating in industrial action now unlawful

TO ALL: BRANCHES, REGIONAL COUNCILS & REGIONAL OFFICES

Circular No: LEGAL/01/21

9th June 2021

Dear Colleague,

LACK OF PROTECTION FROM DETRIMENT FOR PARTICIPATING IN INDUSTRIAL ACTION NOW UNLAWFUL
The RMT Legal Department would like to bring your attention to the recent, significant judgment in the case of Mercer v Alternative Future Group Ltd and anor (Secretary of State for Business, Energy and Industrial Strategy intervening).
In their decision dated 30th April 2021, the Employment Appeal Tribunal held that the exclusion of industrial action from S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 breaches the right to freedom of association and assembly enshrined under Article 11 of the European Convention on Human Rights.
UK law had previously prohibited employers from dismissing staff involved in strike action or other workplace disputes, but not from disciplining them or subjecting them to unfair treatment in some other way (‘a detriment’). Previously, employers have used this lacuna in UK law to subject workers who’ve taken part in disputes to disciplinary action or detriment. However, in effect this important decision makes disciplinary action or detriments against workers imposed due to taking industrial action unlawful.
If you are aware of any member who is subjected to disciplinary action or a detriment due to participating in industrial action, they should be encouraged to submit an L2 Form to the RMT Legal Department for legal advice at their earliest opportunity.

Yours sincerely,

M. Lynch
General Secretary