With the Euros kicking off on 14 June, people all over the UK and Europe are discussing strikers. While most in England are debating whether it should be Ivan Toney or Ollie Watkins as first-choice deputy for Harry Kane, in the employment law world we have been focusing on the strikers at the heart of an important new Supreme Court decision in Secretary of State for Business and Trade v Mercer.

In Mercer, the Supreme Court was asked to consider whether an employee is protected from retaliation if their employer suspends or disciplines them in an effort to deter them from going on strike, and whether or not section 146 TULRCA 1992 really protects employers rather than employees.

Mercer – Background to the case

Ms Mercer, a care worker and UNISON trade union representative, organised and participated in lawful strikes against her employer in protest of planned pay cuts for sleep-in staff. Her employer suspended her for taking part in the strikes and for speaking to the media about them. Ms Mercer claimed that her employer suspended her for the sole or main purpose of preventing or deterring her from exercising her legal right to take part in independent trade union activity at an appropriate time, in breach of section 146 TULRCA.

The Employment Tribunal rejected her claim, finding that section 146 did not protect employees from any detriment short of dismissal. That was a surprising outcome, but the Court of Appeal felt compelled to uphold this decision because of how section 146 is drafted, but it acknowledged that it may put the UK in breach of Article 11 ECHR, which protects freedom of assembly, in that it failed to protect employees from unjustified employer retaliation for engaging in lawful strike action.

The Supreme Court decision

The Supreme Court found that section 146 only protected employees where they had been dismissed, and therefore it did not protect Ms Mercer who had been suspended. As such, the Supreme Court declared that section 146 does not adequately protect and uphold UK citizens’ rights under Article 11 ECHR. Not only are employees not adequately protected, but deficient drafting in section 146 arguably protects employers, by effectively enabling them to take deterrent measures without fear of legal reprisal.


The conclusion is surprising as most HR professions would expect an employee who engages in lawful strike action would be protected under UK law. While this finding will not change the law itself, Mercer draws attention to the need for the next government to re-examine section 146 to ensure it is compatible with the ECHR. The decision is also timely. The Labour Party are looking increasingly likely to sweep to power on 4 July 2024, and it is notable that updating trade union legislation in order to “empower working people” is highlighted in their manifesto. Whether it’s emboldened strikers in the labour market or on the football pitch, there’s a lot to look out for this summer.

It’s Ivan Toney by the way.