Union members are protected from detriment even if industrial action is unofficial

The Employment Appeal Tribunal has ruled that the legislation which makes it unlawful to subject workers to a detriment to deter participation in union-related activities extends to all kinds of industrial action. This represents a considerable widening of the way these provisions were previously understood. There are separate rules for dismissals relating to industrial action, where there is still a distinction between official and unofficial action.

Section of the 146 Trade Union and Labour Relations Act 1992 protects workers from being subjected to any “detriment” by their employer in order prevent or deter them from taking part in the activities of an independent trade union “at an appropriate time”, or penalising them for doing so. For these purposes detriment does not include dismissal.

In this latest decision on section 146, 29 members of BALPA (an airline pilots’ union) were threatened with the withdrawal of concessionary travel benefits if they continued to participate in industrial action. Ryanair then withdrew the benefits for one year.

Prior to the decision of the EAT in Mercer v Alternative Futures Ltd earlier this year, it was thought that the inclusion of the words “at an appropriate time” by implication excluded industrial action from being a protected activity. Subject to an appeal which is due to be heard by the Court of Appeal in January 2022, Mercer established that section 146 extended to industrial action, but did not decide whether that included unofficial action.

This point has now been clarified by the EAT in Ryanair. It has decided that there is no distinction between official and unofficial action for these purposes. It also ruled that the same interpretation should be given to union activities in the 2010 Blacklisting Regulations (though these do not include the “at an appropriate time” qualification). 

Taken together, these EAT decisions significantly change our understanding of the scope of section 146. However, we will need to wait for the Court of Appeal’s ruling in Mercer next year for a complete understanding on how this important provision will be interpreted in future.  We understand the employers are also appealing in Ryanair, but no date has been set for the hearing as yet.

Charles Pigott, Professional Support Lawyer

Nihkel Dosanjh, Trainee Solicitor

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