Workers who have taken industrial action are covered by protection against blacklisting

Posted: 23/01/2025

A recent ruling by the Court of Appeal (CA) has confirmed that workers who have participated in official industrial action are covered by the Employment Relations Act 1999 (Blacklists) Regulations 2010. Under the regulations, it is unlawful to compile or use a list of persons who have taken part in ‘activities of trade unions’ with a view to using such a list for discriminatory purposes.

The CA found that ‘activities of trade unions’ should be construed widely enough to include participation in a strike. 

Facts

In Morais and ors v Ryanair DAC and anor, a group of pilots employed by Ryanair participated in strike action organised by BALPA. Ryanair had tried to stop the action by arguing before the High Court that the union had not complied with all of the balloting and notification requirements under part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A); however, an application for an injunction failed and this claim was discontinued.

Following the strike, Ryanair withdrew concessionary travel benefits from the pilots for a year. The pilots brought claims before the Employment Tribunal (ET), arguing that this amounted to an unlawful detriment for taking part in the activities of a trade union contrary to section146 TULR(C)A. They also brought claims under the Employment Relations Act 1999 (Blacklists) Regulations 2010.

The ET ruled that the pilots were taking part in trade union activities for the purposes of both TULR(C)A and the regulations. In relation to TULR(C)A, the ET found that it was required to interpret section 146 as including participation in a strike in order to protect the pilots’ trade union rights under Article 11 of the European Convention on Human Rights. Turning to the regulations, the ET noted that Ryanair held records identifying those employees who had participated in the industrial action, and found that this amounted to blacklisting. However, the ET seemed to accept that protection from blacklisting would not kick in unless the trade union had immunity from action by complying with all the requirements of section 219 TULR(C)A. 

Ryanair appealed to the Employment Appeal Tribunal (EAT); this was dismissed. Before the appeal was heard, the EAT had found in the case of Mercer v Alternative Future Group Ltd and anor that section 146 TULR(C)A had to be read as including participation in industrial action, otherwise it would not comply with Article 11. In relation to the regulations, the EAT upheld the ET’s finding that ‘activities of trade unions’ must include participation in industrial action, and that it was irrelevant whether or not the union had immunity under section 219 TULR(C)A. 

Ryanair appealed the decision to the Court of Appeal.

Decision

The CA dismissed Ryanair’s appeal. Since the EAT’s ruling, the Supreme Court had considered the Mercer case, and found that the phrase ‘the activities of a trade union’ in section 146 TULR(C)A did not cover participation in lawful strike action. It was impossible to interpret section 146 to conform with Article 11, and therefore the Supreme Court made a declaration of incompatibility. In Morais, the Court of Appeal noted that there could not be any real dispute that ‘activities of an independent trade union’ include organising industrial action, and found that the phrase should be given its natural meaning.

The Court of Appeal also found that the protection extends to all official industrial action (ie action that has been organised or endorsed by a trade union) regardless of whether the trade union has complied with the balloting and notification requirements under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992. As long as the action is organised by the union (and is therefore official), the participating employee will be protected from blacklisting.

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