Automated Summary
Key Facts
The Employment Tribunal struck out and dismissed claims under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) brought by Mr O Adebiyi and 7 others against Royal Mail Group Ltd. The dismissal followed the Supreme Court's 17 April 2024 decision in Mercer, which affirmed that section 146 does not protect employees from non-dismissal sanctions and is incompatible with Article 11 of the European Convention on Human Rights. The Tribunal concluded these claims had no reasonable prospect of success under Rule 37(1)(a) of the Employment Tribunals Rules 2013, as they exceeded the Tribunal's statutory jurisdiction.
Issues
- The court determined whether Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides protection for employees subjected to non-dismissal detriments (e.g., wage deductions, overtime non-payment) for participating in trade union activities. The Supreme Court affirmed the Court of Appeal's decision in Mercer, ruling that Section 146 does not extend to such protections, as a Convention-compliant interpretation would require impermissible judicial legislation under Section 3 of the Human Rights Act 1998.
- The court considered whether the Mercer ruling by the Supreme Court stripped the Employment Tribunal of jurisdiction over Section 146 detriment claims. It was determined that the tribunal lacked authority to adjudicate these claims after the Supreme Court's decision confirmed their incompatibility with the law's statutory framework.
- The tribunal assessed whether Section 146 TULRCA could be interpreted to comply with Article 11 (freedom of association) of the European Convention on Human Rights under Section 3 of the Human Rights Act 1998. The Supreme Court concluded no such interpretation is possible without altering the law's substance, which exceeds the tribunal's jurisdiction and constitutes impermissible judicial legislation.
- The claimants sought a reasoned judgment to exhaust domestic remedies before pursuing a European Court of Human Rights (ECHR) application against the UK Government. The tribunal acknowledged this procedural requirement under Article 35 of the ECHR but dismissed the claims due to their lack of reasonable prospect of success under domestic law.
Holdings
- The court held that the Employment Tribunal lacks jurisdiction to hear section 146 TULRCA claims where they conflict with the Supreme Court's interpretation in Mercer, as such claims require impermissible judicial legislation incompatible with Article 11 of the European Convention on Human Rights.
- The court struck out and dismissed the section 146 TULRCA 1992 claims for detrimental treatment, determining they have no reasonable prospect of success. This decision was based on the Supreme Court's ruling in Mercer, which affirmed that s.146 does not protect against non-dismissal sanctions and exceeds the tribunal's statutory jurisdiction under the Human Rights Act 1998.
Remedies
The claims in the schedule attached to this judgment, being claims solely for detrimental treatment under s.146 TULRCA 1992, are struck out and dismissed.
Legal Principles
The Supreme Court held that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 cannot be interpreted to provide protection against non-dismissal sanctions. The court emphasized that while the purposive approach under the Human Rights Act 1998 (section 3) requires interpreting legislation compatibly with the Convention, it does not permit judicial legislation that alters the substance of a statute. The decision reaffirmed that section 146's wording, as interpreted literally, does not extend protection beyond dismissal-related actions, thus exceeding the tribunal's jurisdiction for detriment claims.
Precedent Name
Mercer
Cited Statute
- Trade Union and Labour Relations (Consolidation) Act 1992
- Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
- Human Rights Act 1998
Judge Name
Pirani
Passage Text
- the claimants are considering an application to the European Court of Human Rights (ECHR) against the UK Government, which would include a claim for a breach of Article 11 and 6 of the European Convention of Human Rights (the Convention). In particular, the claimants note that a claim which is the subject of an application to the ECHR must first have been brought in the domestic forum. Moreover, article 35 of the Convention requires all domestic remedies to have been exhausted prior to an application to the ECHR.
- The Respondent has since clarified that, in light of Mercer, it pursues its application under Rule 37(1)(a) ET Rules 2013 for all section 146 detriment claims. This rule provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim on specific grounds including that it 'has no reasonable prospect of success.' In short, it is argued that in the face of Mercer the Claimants have no reasonable prospect of success in pursuing claims which have been found by the Supreme Court to exceed the Employment Tribunal's statutory jurisdiction.
- In the event, by judgment handed down on 17 April 2024, after a hearing on 12 and 13 December 2023, the Supreme Court affirmed the view of the Court of Appeal and the Employment Tribunal that a convention compliant interpretation of section 146 would amount to an impermissible judicial legislation and exceeded the proper confines of section 3 Human Rights Act 1998 (HRA). The Supreme Court found that section 146 TULCA was incompatible with Article 11, insofar as it fails to provide any protection against sanctions short of dismissal.