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Case details

Secretary of State for Business and Trade (Respondent) v Mercer (Appellant)

Case ID: 2022/0080

Case summary


Can a worker who is subject to detriment for the purpose of preventing or deterring her participation in a union-organised industrial action can potentially bring a claim under s. 146(2)(b) of the Trade Union & Labour Relations (Consolidation) Act 1992 ("TULRCA")?

In particular: (i) does Article 11 ECHR protect workers in such circumstances, and can the absence of sufficient protection under s. 146 TULRCA as conventionally interpreted be justified under Article 11(2)?; and (ii) is it possible to interpret s. 146 TULRCA so as to be compatible with Article 11 pursuant to the duty in s. 3 HRA 1998, or should the court make a declaration of incompatibility pursuant to s. 4 HRA 1998?


The Appellant, a UNISON representative, was involved in planning and organising strikes lawfully called by UNISON. She also spoke to the press about the strikes. She was subsequently suspended by her employer. She was told that this was because of allegations she had abandoned her shift on two previous occasions without permission, and because she had spoken to the press without prior authorisation in a way which conveyed confidential information and which was considered likely to bring her employer into disrepute. According to the Appellant, during her suspension she received normal pay but was unable to work or receive pay for the overtime she would normally have worked and the effect, if not the purpose, of the suspension was to remove her from the premises while the industrial action was in progress. The Appellant brought a claim against her employer under s. 146 of TULRCA. Her claim form complained that she had therefore suffered a detriment, and that the decision to suspend her had been taken for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union "at an appropriate time" or penalising her for having done so.

By agreement between the parties, the Employment Tribunal determined as a preliminary issue whether, in the light of Articles 10 and 11 of the European Convention on Human Rights, the activities protected by s. 146 extended to participation in lawful industrial action as a member of an independent trade union. The Employment Tribunal held that it did not, but the Employment Appeals Tribunal allowed the Appellant's appeal and held that it did. The Court of Appeal allowed a further appeal by the intervener, the Secretary of State for BEIS. The Appellant now appeals to the Supreme Court.

Judgment appealed

[2022] EWCA Civ 379



Fiona Mercer


Secretary of State for Business and Trade



Lord Lloyd-Jones, Lord Hamblen, Lord Burrows, Lord Richards, Lady Simler

Hearing start date

12 December 2023

Hearing finish date

13 December 2023

Watch hearing
12 December 2023 Morning session Afternoon session
13 December 2023 Morning session