What steps can businesses take to dissuade employees from going on strike (and remain within the law)?

An employee who takes part in a lawful strike is protected against being dismissed for that purpose. But the position is less clear where they are suspended or disciplined in an attempt to prevent or deter them from going on strike. Can they rely on section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, (which protects employees against detriment because they are a member of a trade union or have taken part in activities linked to a trade union) to protect them?

In Mercer v Alternative Future Group, the Court of Appeal held that an employee who was subjected to a detriment (short of being dismissed) for taking part in industrial action couldn't bring a claim under section 146. It went on to say that this may put the UK in breach of article 11 of the European Convention on Human Rights (which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so) but that it couldn't rewrite the law to comply with this.

The Supreme Court will determine this issue later in the year.

Why this matters

In December the UK recorded the highest number of working days lost to strikes for more than 10 years. That looks set to continue as inflation continues to eat into people's pay packets.

It's not unusual for employers to remove discretionary benefits from workers and/or subject them to other...

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