Extending statutory protection to action short of dismissal for participating in industrial action: the Supreme Court on the right to strike in secretary of state for business and Trade v Mercer

The Supreme Court in Mercer v Secretary of State for Business and Trade found there was a violation of the right to strike, under article 11 ECHR, when there is no legal protection against detriment short of dismissal for taking part in industrial action. Section 146 Trade Union Labour Relations Consolidation Act (‘TULRCA’) 1992, as currently construed, does not cover this situation. While the Supreme Court agreed with the Court of Appeal that it would not be appropriate to use section 3 Human Rights Act (‘HRA’) 1998 to re-interpret section 146 TULRCA in a Convention-compliant way; unlike the Court of Appeal, the Supreme Court issued a rare declaration of incompatibility under section 4 HRA. It is suggested in this note that Mercer is significant for two main reasons. First and foremost, Mercer is significant for the Supreme Court’s recognition of, and finding of, a violation of, the right to strike. Second, Mercer contributes to the wider debate about the interplay between sections 3 and 4 HRA. The final part of the note reflects on the Supreme Court’s interpretation of Strasbourg case law whereby the Court in Mercer found article 11 ECHR requires stricter protection in this respect for public authority workers.