After a five-year battle for the right to strike, UNISON officers and lawyers reflect on how the union secured a landmark victory for all workers
In April this year UNISON secured a crucial Supreme Court victory that cements the right to strike in UK law and reinforces protection for all workers who take part in industrial action.
The case was fought on behalf of care worker Fiona Mercer, who in 2019 was suspended by her then employer for participating in industrial action. When the government intervened in her case, Fiona found herself at the heart of a high-stakes legal battle with consequences for every single worker in the country.
Hailed by UNISON general secretary Christina McAnea as “the most important industrial action case for decades”, the legal victory has secured critical assurance to workers who take part in union campaigns. Yet, as with anything worth doing, it wasn’t easy. It was fought over five years by a dedicated team of union reps, officers and lawyers.
Left to right: UNISON head of legal services Shantha David, Fiona Mercer and UNISON legal officer Bruce Robin
Making a stand
Back in 2019, Fiona was a full-time care worker for a company called Alternative Futures Group Limited (AFG) that provides care services across the north west of England. Fiona worked in a bungalow with three adults with learning difficulties who required 24/7 care, which often involved working long 15-hour ‘sleep-in’ shifts.
When AFG announced plans to cut payments to care staff working sleep-in shifts across the region, Fiona got involved in UNISON’s campaign to fight back.
I was totally singled out, ostracised and worried I was going to get the sack.
Describing the campaign, Denise Bradley, UNISON branch secretary for Bridgewater Community Health Trust, says: “It’s really hard to organise care workers because you’re not in a workplace and you can’t drop in because their workplace is someone’s home. In this case, we had workers spread across a big geographical region. In order to run the campaign, we recruited eleven new reps. Fiona was one of them.”
During negotiations, Denise says the union’s relationship with AFG was “pretty hostile” and Fiona describes how, early on in union meetings, she felt targeted by the employer. Things escalated when UNISON served the employer with notice for members to take industrial action.
“Every time I’d gone to an organising meeting to try and resolve things with the employer, I’d been singled out,” Fiona says. “And I was right. One day at work I was called into a meeting and the managers just handed me a handwritten piece of paper saying I was being suspended for two weeks. Those two weeks were right in the middle of the strike action. It was horrible, I’d done nothing wrong.”
Due to AFG’s hostile approach towards UNISON’s industrial action, the timing of the suspension led Fiona to believe she had been victimised for participating in lawful strike action.
Recalling that experience, she says: “I was totally singled out, ostracised and worried I was going to get the sack. The girls I’d worked with there were all my friends, and the only friends I had at the time, and I was told that I wasn’t allowed to speak to them in any way while I was suspended.”
Employment tribunal
Fiona sought the advice of Denise and UNISON regional officers, who engaged the union’s lawyers and brought a case against AFG in 2019 that claimed she had experienced detriment for participating in strike action.
The case went to an employment tribunal in 2020, which the employer won. When UNISON appealed the decision in 2021, the government got involved.
“The government often intervenes in cases where there’s wider public importance. They knew the outcome of this case would affect all workers”, explains UNISON solicitor Bruce Robin, who ran the case all the way to the UK Supreme Court.
UNISON's central argument in the case was the fact that UK law, specifically section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), should protect striking workers in a way that is compliant with the European Convention on Human Rights. Each human right covered by the convention is listed as an ‘article’. The specific part of international human rights law relevant to this case was Article 11.
What is Article 11 of the European Convention on Human Rights?
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions.”
Article 11 protects your right to protest by holding meetings and demonstrations with other people, including being part of a trade union or political party. It also includes strike action.
Towards the Supreme Court
When the government chimed in, I think my words were, 'What's it got to do with them?'
In a ground-breaking decision, the employment appeal tribunal (EAT) agreed with UNISON that UK law must include a new right of protection for striking workers to comply with Article 11. The employer AFG admitted defeat. But the government doubled down. In 2021, then business secretary Kwasi Kwarteng applied to take the case to the Court of Appeal and overturn the new right of protection created by the EAT.
“When the government chimed in, I think my words were, ‘What’s it got to do with them? It’s nothing to do with them’”, says Fiona. “Then it dawned on me. The government was getting involved because they didn’t want workers to be protected. That made me so angry.”
The government’s involvement in this case was part of a broader trend of anti-trade union measures, including the Trade Union Act 2016 and legislation that imposes minimum service levels during industrial action. Unfortunately, when the case got to the Court of Appeal in 2022, the court reversed the EAT decision. Concerned that this would mean bad employers would continue mistreating workers who strike, UNISON supported Fiona to appeal to the Supreme Court.
UNISON’s lawyers argued that the Court of Appeal’s decision left the UK in breach of Article 11 and left striking employees without proper protection. The Supreme Court – a panel comprising five of the UK’s most senior judges – unanimously agreed with UNISON.
Significance
Bruce Robin observes: “There’s never been a case like it before. The highest courts have always been extremely reluctant to accept that UK law must comply with Article 11 to protect the rights of striking workers. The right to strike is referred to 18 times in the judgment, which is a powerful indication to show the tide is turning.
“Amid so many anti-trade union laws, we were able to persuade our highest court that UK legislation must be changed to offer better protection to striking workers.”
Shantha David, UNISON’s head of legal services, says the case helps all trade unions facing similar challenges set by the current government. “It’s a ray of light. There’s nothing worse than when unions go through all the effort and expense of organising ballots to ensure a strike is legally compliant, only to have an employer totally undermine it by targeting reps and workers with strike-breaking tactics. UNISON’s efforts on this case have helped to put a handbrake on all of that.”
From a branch perspective, Denise says that she hopes the news of Fiona’s victory will give more vulnerable workers assurance that they will be protected. “People are scared to go on strike, especially in social care organisations. I really hope they know they will be protected and that if an employer comes for them, we’ll fight back.”
For North West regional organiser Paddy Cleary, who was involved in the pay dispute, it’s a win for the entire trade union movement. “Withdrawing your labour is a fundamental principle of the union movement’s power. The government has targeted unions because they don’t like what we do. If UNISON hadn’t won this case, it could have opened the door to let some bad employers exploit and punish workers for taking strike action.”
Fiona is bemused by people congratulating her when, according to her, it feels like the union did all the hard work. “All I had to do was stay strong,” she says. Nevertheless, that’s easier said than done in legal proceedings lasting over five years. Did she ever feel like giving up?
“There were times over the last five years I wanted to give up. But then I’d speak to my mum, and she’d remind me of how awful I felt when they suspended me. And she’d remind me that I’m not somebody who gives up. And she was right, I’m not.”
Words: Janey Starling. Images: Marcus Rose
Design: Demetrios Matheou