Protection from detriments for taking industrial action
The TUC is the voice of Britain at work. We represent more than 5.3 million working people in 47 unions across the economy. We support unions to grow and thrive, and we stand up for everyone who works for a living.
The TUC strongly welcomes the government’s preferred option of prohibiting all detriments for taking industrial action.
As recognised by the Supreme Court in Secretary of State for Business and Trade v Mercer, 1 protections against trade union detriment must be extended to detriments short of dismissal to address a long-standing gap in the law. The judgment confirmed that the existing legal framework did not protect workers from detriment for participating in industrial action, a gap that is incompatible with the fundamental right to freedom of association under Article 11 of the European Convention on Human Rights. In practice, this legal vacuum has a pernicious and chilling effect, discouraging workers from exercising their rights for fear of being penalised, whether through disciplinary warnings, loss of opportunities, or other hidden detriments that fall short of dismissal but still cause real and material harm.
The government’s Plan to Make Work Pay stated that:
“Labour will update trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations are based around good faith negotiation and bargaining.” 2
The government’s proposed approach in this consultation paper is consistent with its aims of supporting collective rights. It is vital that the law isn’t drafted in a way that allows employers to identify areas where detriment could be applied without legal risk. There is, therefore, a need to ensure that the government takes a robust approach to the implementation of this provision, without carve-outs or exceptions.
Trade unions are essential for rebalancing power in the labour market. While taking industrial action is a last resort for workers seeking to bring an employer to the table for meaningful negotiation, workers’ ability to withdraw their labour underpins the successful resolution of many disputes before strike action has taken place. The threat of detriments as a result of taking industrial action therefore undermines this. The government must take an expansive approach to prohibitions on detriments to ensure its commitment to empowering workers and rebalancing industrial relations.
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