The UK Supreme Court ruled Wednesday that part of the UK’s trade union laws are incompatible with the European Convention on Human Rights (ECHR). Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) was held to breach Article 11 of the ECHR, which guarantees the right to freedom of assembly and association.

The unanimous decision of the five justices allowed the appeal of support worker Fiona Mercer, who was seeking a declaration of incompatibility of trade union law. Mercer, a workplace representative for the workers union UNISON, planned and participated in a strike in 2019 and was subsequently suspended. During this suspension, she took normal pay but was not able to receive the overtime pay she would have normally worked. Regarding this issue, the court held Section 146 of TULRCA to be incompatible with Article 11. It was held Section 146 failed to provide protection to workers for detriment that is short of dismissal. This legislation therefore did not strike “a fair balance between the competing interests of workers seeking to exercise their trade union rights and those of the employer and the wider community.”

This case was previously heard in the Court of Appeal in 2022 where judges held Section 146 to be incompatible with human rights. However, the court failed to make an official declaration as they regarded the incompatibility as arising from a gap in domestic law rather than from a specific provision of primary legislation. The Supreme Court disagreed with this.

UNISON, whose legal team represented Mercer in court, celebrated the success of the case. General Secretary of the union, Christina McAnea, stated, “UNISON has just won the most important industrial action case for decades. Rogue bosses won’t like it one bit. They’ll no longer be able to punish or ill-treat anyone who dares take strike action to try to solve any problems at work.”

Under Section 4 of the Human Rights Act, following a declaration of incompatibility by a court, parliament must respond and amend the legislation to align with the ECHR. UNISON stated, “The government must now act quickly to change the law and ensure no other employees are treated unfairly.”