Employment Appeal Tribunal holds striking employees are protected from detriment

Blog | Employment
Published: 3rd March 2022
Area: Corporate & Commercial

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In a case of real interest to those involved in unionised sectors of the economy, the EAT has held the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) which protect workers from detriment connected with trade union activities, also confers protection on workers who take industrial action, notwithstanding as to whether such action is protected under the legislation. In addition, the EAT held that striking workers are protected from detriment under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“Blacklisting Regulations”).

The background to the case

Ryanair DAC v Morais and ors

A group of Ryanair pilots participated in a strike called by the recognised trade union, BALPA. As a result, Ryanair withdrew concessionary travel benefits for a year from the pilots. The pilots brought claims arguing the withdrawal of benefits constituted an unlawful detriment under s.146 of TULR(C)A. In addition, the pilots brought a claim under regulation 9 of the Blacklisting Regulation, which prevents detriment in respect of a prohibited list.

Following a preliminary hearing, it was held the pilots were taking part in trade union activities in relation to both the Blacklisting Regulations and section 146(1)(b) of TULR(C)A.

What are the key points in this case?

TULR(C)A

The tribunal considered that to be able to protect the pilots’ trade union rights under Article 11 of the European Convention on Human Rights (ECHR), it was necessary to interpret section 146 as including participation in a strike, although TULR(C)A does not expressly state as such, which had led to uncertainty on the point. This was then upheld on appeal by the EAT.

Blacklisting Regulations

The EAT also held in relation to the Blacklisting Regulations, that the tribunal was correct in concluding that taking part in trade union activities includes participating in a strike or other industrial action organised or called by the union and that this interpretation is not limited to protected industrial action. Therefore by keeping a list of those who have taken part in industrial action and using it for detrimental purposes (the removal of the travel concessions), Ryanair had breached the Blacklisting Regulations.

What does this recent case highlight for employers?

This decision is an important one that builds on the additional protections for workers taking part in industrial action, after the conclusion of that action, and extends the protection against detriment further by clarifying the scope of both of the protections under TULR(C)A, about which there had been some doubt, and also the Blacklisting Regulations.

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