The Supreme Court has backed a care worker after she claimed she was unfairly treated by her employer for going on strike.

A Supreme Court ruling on Wednesday found in favour of Fiona Mercer who was suspended by her employer, the Alternative Futures Group (AFG), after she joined strike action over sleep-in shift payments.

UNISON general secretary Christina McAnea said: “This is the most important industrial action case for decades. It’s a victory for every employee who might one day want to challenge something bad or unfair their employer has done.

“Rogue bosses won’t like it one bit. They’ll no longer be able to punish or ill-treat anyone who dares to take strike action to try to solve any problems at work.”

UNISON took up Mercer’s case after her victory at an employment appeal tribunal (EAT) in 2021 was overturned by the Court of Appeal in March 2022.

Welcoming this week’s ruling, Mercer said: “I’m delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff. If they single strikers out for ill-treatment, they’ll now be breaking the law.” 

A spokesperson for AFG said: “We are aware of the Supreme Court case judgement in relation to UNISON on behalf of Fiona Mercer released today. The case decided a point of law and was considered following an intervention by the secretary of state at appeal court stage. AFG did not participate at either Court of Appeal or Supreme Court level.

“AFG respect the decision of the Supreme Court related to an employees’ right to strike however the case itself has not been decided by the decision. The Supreme Court have clarified: ‘Like the Court of Appeal, I make clear that this is an issue which is divorced from the underlying facts of this case and there have, as yet, been no findings of fact about AFG’s intention in acting as it did, nor about the reasonableness or proportionality of its actions’ (Section 90 – Secretary of State for Business and Trade (Respondent) v Mercer (Appellant)).”

A government spokesperson said: “The ability to strike is rightly subject to limitations and conditions in the UK so that the interests of workers is balanced fairly with those of employers and the general public. 

“The government will consider the judgment carefully before responding, but there is plenty of recent evidence that workers are perfectly able to take part in lawful industrial action to defend their interests without being put off by concerns about unfair or unreasonable sanctions imposed by employers.”  

Liz Stevens, professional support lawyer at Birketts’ employment team, said: “The Supreme Court’s decision does not have any immediate effect on the current legislation, meaning that it remains in place until such time as Parliament takes the necessary steps to amend it. This means that workers are currently unprotected from being subjected to a detriment short of dismissal by their employer for taking part in industrial action. It will be a matter for Parliament to decide how best to strike a balance between the competing interests of employers and workers in this regard, when amending the legislation. A failure to take the necessary steps to ensure the legislation complies with Article 11 could result in further action being taken against the government at the European Court of Human Rights in Strasbourg. 

“In view of the impending General Election, it is doubtful that the government will take any immediate action to redraft this statutory provision, although it is perhaps more likely to be prioritised by a Labour government (should they succeed in being elected). Employers should remain cautious in subjecting any striking workers to a detriment in the meantime, to avoid being accused of acting in a manner now acknowledged to breach workers’ human rights.”