By Charlie Kimber
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Unions should use supreme court win to boost fightback

Judges said union law fails to protect strikers against sanctions short of dismissal
Issue 2901
Fiona Mercer and legal team illustrating a story about unions and supreme court

Fiona Mercer and her legal team outside the Supreme Court

Workers should use a supreme court judgment this week to batter bosses who have penalised or discriminated against strikers.

Judges on Wednesday said British trade union law breaches workers’ rights as it fails to protect them against sanctions short of dismissal when they strike. The supreme court said that the law as it stands “encourages and legitimises unfair and unreasonable conduct” by employers and was incompatible with the European Convention on Human Rights.

The law is supposed to stop employers sacking strikers. But it doesn’t even pretend to offer protection to anyone who faces attacks that are less than dismissal.

Lady Ingrid Simler said in the judgment that employers’ ability to impose measures short of sacking “nullifies the right to take lawful strike action”. She said, “If employees can only take strike action by exposing themselves to detrimental treatment, the right dissolves.”

The Unison union pushed the issue on behalf of care worker Fiona Mercer. Fiona had originally taken a case against her then employer, Alternative Futures Group (AFG), a charity based in the north west of England, to an employment tribunal in 2020.

She had been involved in a 2019 battle by 600 workers over AFG’s plans to cut payments to care staff who did sleep-in shifts.

Fiona’s employer suspended her and barred her from going into work or contacting colleagues during the action. During her suspension she received normal pay, but received nothing for the overtime she would normally have worked.

An employment appeal tribunal (EAT) found in her favour and the employer gave in. But higher ruling class figures wanted to make no concessions to strikers and to keep the intimidatory power to punish strikers.

Then business secretary, Tory Kwasi Kwarteng, intervened and took the case to the Court of Appeal, which subsequently decided to reverse the EAT decision in March 2022.

Unison then advanced it to the supreme court. Speaking after the verdict, Fiona said, “I’m delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff. If they single strikers out for ill-treatment, they’ll now be breaking the law.”

Christina McAnea, Unison’s general secretary, said this week that the court had delivered the “most important industrial action case for decades”. Paul Nowak, general secretary of the TUC union federation, described the ruling as a “monumental victory” for the union movement and a “crushing defeat” for strike laws.

That’s very optimistic. Strike laws continue to delay workers’ response to attacks, frustrate resistance and bear down on union rights. And they are used as an excuse by union leaders not to head-up a fightback.

And whatever the law says, every union activist knows there are numerous ways for a boss to penalise you unless there is strong organisation at rank and file level. Bosses overlook activists for promotion, give them the worst shifts, look out for the slightest infringement of rules and leap on any lack of punctuality. This is all legal, and in the end only the threat of a fight protects militants.

However, the judgment is very positive and should be a spur to wider campaigns. Alan Bogg, a professor in law at Bristol university, told the Financial Times newspaper that many university lecturers involved in recent walkouts had suffered “very, very significant deductions from pay”, going beyond the work they had withheld. “

Saira Weiner, a UCU union member, tweeted, “The implications of this for UCU in higher education who were punitively deducted for marking and assessment boycott are significant. We want our money back.”

Action, not relying on the law, can turn that into reality.


Former workers at music venue 13th Note in Glasgow, members of the Unite union, have won an employment tribunal, and will receive 90 days’ worth of wages.

This win comes after the employer broke trade union laws by dismissing over 20 employees and closing the venue without notice. Now workers want to save the venue and take it back under their control.

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