It’s been a tale of two trade union cases this past month. I'm not sure if this constitutes the best of times or the worst of times – I imagine that depends on which side of the employment relationship you sit!

The Supreme Court has published its judgment in the long-running case of Secretary of State for Business and Trade v Mercer. The headlines are as follows:

• There is a gap in UK trade union legislation which makes it incompatible with Article 11 of the European Court of Human Rights.
• It is not unlawful under current UK law for an employer to disadvantage/punish/cause a detriment to an employee who is engaged in lawful industrial action. It remains unlawful to dismiss lawfully striking employees. 
• The Supreme Court refused to interpret the Trade Union Labour Relations (Consolidation) Act 1992 to bridge this gap. 

The other case at the far end of the judicial process was heard in the Bristol Employment Tribunal between Wiltshire Council and Ms Wallace*, a council employee. This case was bought following the council’s chief executive’s decision to email GMB members on the eve of a strike ballot with an email intending to ‘put the record straight’ following several public disagreements between the Council and the GMB. The email was not received well; council employees complained that it had caused them distress and that they had felt pressured into not voting for strike action. The council was found to be in breach of s146; the employees had suffered a detriment short of dismissal for participating in trade union activities i.e. participating in a strike ballot. 

If you would like to read about these cases in more detail with practical points to note, read our latest ebriefing.

*It has just been announced that this case has been appealed so we await news on this. 

For more information, contact Matthew Wort, senior partner.