UK Supreme Court Rules Trade Union Law Breaches Workers’ Rights in Landmark Decision The Supreme Court has today ruled that trade union law in Britain breaches workers’ human rights failing to protect them from sanctions short of dismissal for taking part in industrial action. Mrs Mercer was a trade union representative and employee of Alternative Futures Group Ltd in the role of support worker. She was suspended during lawful strike action. She was paid basic pay losing out on overtime pay for overtime she would have otherwise worked, prevented from talking to her colleagues and was issued with a written warning. Proceedings were brought under Section 146 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULCRA) claiming that she suffered a detriment short of dismissal for organising and participating in strike action. The Supreme Court was asked to determine whether TULCRA protected workers who take part in strikes during working hours from detriment short of dismissal. The Supreme Court Judges decided that the legislation did not do so because protection was only given to industrial action carried out “outside working hours”. It commented that Section 146 amounted to a lack of protection for workers and encouraged unfair and unreasonable conduct by employers. Judges held that the UK law is incompatible with Article 11 of the European Convention on Human Rights namely the right to freedom of association concluding that the law as it stands is in breach of human rights requirements. Taking the rare step of making a declaration of incompatibility, the court stated that “it fails to provide any protection against sanctions short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union”. The UK Parliament will now consider making amendments to the legislation. Reflecting on the decision today, Orla Sheils of our Employment Law Department commented “This decision is hugely significant for trade union members and representatives engaging in industrial action and in the legal jurisdiction of Northern Ireland where Union busting is unfortunately a real issue in some workplaces, it should send a strong message to rogue employers who seek to punish their employees simply for engaging in lawful industrial action".

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It is now estimated that one in two of us will develop cancer in our lifetime and there are around 9,000 new cases diagnosed in Northern Ireland each year. Donnelly & Kinder Solicitors are proud to be supporting Action Cancer – Northern Ireland’s leading local cancer charity. Throughout the month of March, we will be waiving our professional fee for basic Wills. Instead, we will ask you to make a donation to Action Cancer. Your donations will help raise funds towards Action Cancer’s range of services including therapeutic support services and their unique breast screening service. All money raised stays in Northern Ireland and goes directly to supporting the 25,000 people that engage in Action Cancer’s services each year. At Donnelly & Kinder we have over 20 years of will writing expertise, so if you would like to make a Will and support a worthy cause, please contact us on 02890244999 or email info@donnellykinder.com .

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As we celebrate International Day of Persons with Disabilities, we remind ourselves that not all disabilities are visible. For many of us, disability is something that we see, usually a physical impairment and if we notice an individual is experiencing difficulty with for example their mobility, we can accommodate their needs making whatever adjustments are necessary to alleviate any disadvantage they may suffer. Disability however is not confined to a physical impairment and the Disability Discrimination Act 1995 aimed at ending discrimination faced by those disabled, defines disability as “a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities”. Mental impairment could be Depression, chronic pain, a hearing impairment, brain injury, learning differences for instance. Identifying that someone has a mental impairment is not easy and we therefore need to rely on individuals to raise this issue with us and feel entirely comfortable in doing so. Within the employment department at Donnelly & Kinder, we regularly advise and represent individuals who suffer discrimination on the basis of their disability by their colleagues and employers. Such acts can include offensive comments made, denials of opportunities for promotions or training, dismissals on capability grounds and failures to make reasonable adjustments in the workplace. Whilst most employers are aware of their responsibilities under the Disability Discrimination Act 1995, many struggle when dealing with employees who present with a mental impairment. Adjusting their premises, acquiring new equipment, allocating certain duties to other colleagues, is something employers have been doing for nearly 25 years now, however when it comes to dealing with a mental impairment many employers simply do not know where to begin and regrettably some employers do not have any desire to fulfil their duties under the legislation. For those of you who have a mental impairment and meet the test of disability to be covered by the Act, it is important that you realise that you have rights. Your employer is required to consider whether or not it should make reasonable adjustments to your working environment. It is imperative that you take ownership of the issue and set out what you require to assist your employer, through Human Resources, Occupational Health or expert healthcare professionals in making an assessment. Your employer is required to consider what disadvantage you are experiencing in the workplace, the effectiveness of the adjustment you require and the practicality of the adjustment. Your employer will want to investigate the cost to the business in financial terms and any potential disruption to business activity. If you feel that your employer has failed to make reasonable adjustments for you, you may pursue a legal remedy in the Industrial Tribunal. For those of us who do not have a mental impairment, today is the perfect time to remember that not all disabilities are visible and to reflect on what we can do personally as colleagues and perhaps employers to support and champion the rights of those who do. It may be something as simple as offering a listening ear to someone diagnosed with Depression, assisting a colleague whose cognitive function is impaired with a memory task, or with their reading, writing a report if they have been diagnosed with Dyslexia. For employers, the best way to ensure fair treatment of those with a mental impairment and compliance with the law is to include those with a mental impairment in your decision making processes whether that is in monitoring recruitment and selection procedures, training, promotion opportunities and pay structures. Messages of inclusivity need to come from senior members of management with mentoring schemes in place to support individuals with the promotion of role models. It is only by taking these measures which are not exhaustive, that the stigma of having a mental impairment and the “disability gap” will be eliminated.