The employees strike back – UNISON brings Supreme Court appeal

The cost-of-living crisis has brought employees’ pay rates into sharp focus during the past few months. The Communication Workers Union (Royal Mail), the National Union of Rail, Maritime and Transport Workers (RMT, on behalf of railway employees) and the Royal College of Nursing (RCN, on behalf of NHS nurses) have all recently voted to strike, with many of those strikes intended to take place in the run up to Christmas. The threat of strike action has continued despite the below decisions made in 2022 which have removed some of the protection afforded to striking employees.

The use of agency workers

In the midst of the rail strikes earlier in 2022, the government clearly foresaw an increase in the number of these strikes when, in July 2022, it made important changes to an employer’s rights during strike action. The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force enabling employers in England, Scotland and Northern Ireland to use agency workers to:

• perform the duties normally performed by striking workers; or
• perform the duties normally performed by another worker, who has been reassigned to perform the duties of a striking worker.

Prior to this change, employment agencies were prevented from supplying agency workers to replace the duties of striking employees; to knowingly supply workers in these circumstances was a criminal offence, meaning the impact of a strike was more keenly felt.

Employers may still have trouble replacing striking workers with agency workers, particularly if a large proportion of the workforce opts to strike and where agency workers might be reluctant to cross picket lines, but the change of legislation gives employers more flexibility in covering gaps in the workforce.

Following this change, UNISON began judicial proceedings in the High Court on 13 September 2022, claiming that the government’s decision is unfair and is based on the outdated evidence of the 2015 consultation. Two other unions have also announced their intention to join these proceedings.

Mercer v The Department for Business, Energy & Industrial Strategy

UNISON is also seeking to overturn a Court of Appeal decision from 2022 that enables employers to discipline staff who take lawful industrial action. UNISON is seeking a declaration from the Supreme Court that employees should not be disciplined, or treated unfairly in some other way, because they have taken part in industrial action, and that this is in breach of Article 11 of the Human Rights Act 1998 (the right to join trade unions for the protection of an individual’s interests).

UNISON member, Fiona Mercer, brought a case against her employer in 2019 following her suspension from work amidst strike action. She was told this was because of allegations that she had abandoned her shift on two separate occasions without permission, and that she had spoken to the press about the strike action without prior authorisation in a way which disclosed confidential information and which could bring the organisation into disrepute.

An employment appeal tribunal decision found that Ms Mercer had been unfairly treated because she had taken part in industrial action. However, the then business secretary Kwasi Kwarteng intervened and an appeal was subsequently brought at the Court of Appeal, which then reversed the EAT decision.

Employers will await the Supreme Court’s decision with interest. Regardless of that outcome, the current climate means that these are unlikely to be the only challenges brought by the Unions and that there will be further claims brought in the future.