Trade Union Rights

June 7th, 2021

Mercer v Alternative Future Group Ltd, UKEAT/0196/20/JOJ, concerns trade Union activities, participation in industrial action, and ECHR Article 11.  EAT President Choudhury J states the principles from para 32. . Article 11 confers a qualified right to freedom of association and assembly. This includes the right to participate in trade Union activity. Restrictions on the exercise of the right are permitted where these are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. The obligations of the State under Article 11 include both the negative one not to commit any act amounting to an infringement of the right and the positive one to secure the enjoyment of the right. The right to take industrial action and to strike is an essential element of the right and is protected by it. Any restriction, however minimal, on the right to participate in a trade Union-sanctioned protest or strike action amounts to an interference with Article 11 rights. When there is an interference with the right the question is whether such interference is justified. That involves a consideration of proportionality. When there is an infringement of the right Section 146 of TULRCA 1992 should be read as encompassing participation in industrial action.

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