The Employment Appeal Tribunal (EAT) has found that employees who take strike action are not only protected from dismissal, but also from being subjected to a detriment short of dismissal. This protection arises under both the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)and under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (Blacklisting Regulations). The EAT found that this is the case irrespective of whether the relevant trade union has complied with the notice and ballot requirements under TULRCA to ensure that the strike action is “protected”.
Background
TULRCA offers protection for employees who take part in trade union activities. Section 146 of TULRCA protects employees from a detriment whose sole or main purpose is to deter them from taking part in the activities of an independent trade union at an appropriate time. Section 152 of TULRCA protects employees against dismissal in those same circumstances.
Case law has established that the protections offered by section 146 and 152 of TULRCA apply only to union activities in the more general sense, and not to strike action or other industrial action. This is essentially because an “appropriate time” would be outside working hours – and industrial action would usually take place during working hours.
TULRCA has been amended so that, under section 238A, it is automatically unfair to dismiss an employee for participating in protected industrial action. This protection usually applies to participation in the action for a period of up to 12 weeks following the date on which the action commences. There is, however, no express provision under TULRCA preventing employers from subjecting an employee to a detriment short of dismissal for having taken part in strike action.
Under the Blacklisting Regulations, it is unlawful to compile, use, sell or supply “prohibited lists”. A prohibited list is one containing details of those who have taken part in trade union activities and which is prepared with a view to being used for the purposes of discriminating against those people on that basis.
Facts
A group of airline pilots employed by Ryanair took part in a strike called by the British Airline Pilots’ Association (BALPA), their recognised independent trade union. Prior to the industrial action, Ryanair warned all employees that they would lose their concessionary travel benefits if they took part in the strike. The strike took place and Ryanair responded by proceeding with the withdrawal of the benefit. The pilots brought a claim against Ryanair on the basis that withdrawal of their travel benefits amounted to an unlawful detriment under TULRCA. The pilots also claimed under the Blacklisting Regulations.
Employment Tribunal decision
At a preliminary hearing, the Employment Tribunal found that the industrial action taken by the pilots did amount to participation in trade union activities for the purposes of both section 146 of TULRCA and the Blacklisting Regulations. In making its decision, the tribunal was mindful of Article 11 of the European Convention on Human Rights (ECHR). This provides a right to freedom of assembly and a right of workers to join trade unions for the protection of their interests. Tribunals are required to interpret domestic legislation in such a way as to achieve consistency with the ECHR.
Ryanair argued that the Blacklisting Regulations did not apply. This was on the basis that some actions relating to the withdrawal of the concessionary travel benefit had taken place in Dublin, not the UK. The Tribunal rejected this argument.
Ryanair appealed.
EAT decision
The EAT dismissed the appeal. It found that, giving it its natural meaning, trade union activities should be read as including industrial action. Accordingly, it agreed that section 146 of TULRCA does protect employees who take industrial action from being subjected to a detriment short of dismissal. In reaching its decision, the EAT considered its earlier findings in Mercer v. Alternative Futures Ltd, in which it was held that it was necessary to read section 146 in this way in order to ensure compatibility with Article 11 of the ECHR. It did not find any reason to depart from that decision.
On the Blacklisting Regulations, the EAT found that, because these did not include the “appropriate time” limitation, it was clear that protection applied to industrial action without having to be interpreted in the context of the ECHR. It also held that the scope of the Blacklisting Regulations includes lists created and used outside the UK.
The EAT also rejected Ryanair’s argument that these rights did not apply because the industrial action itself was not protected due to alleged procedural failings by BALPA. The EAT found that, although section 238A of TULRCA refers to “protected” industrial action, that wording does not appear in section 146 or in the Blacklisting Regulations, and there is no need to read it in. Consequently, the right not to be subjected to a detriment for participating in industrial action applies whether or not the industrial action is protected.
Why is this important for employers?
Prior to this decision and the decision in Mercer, the position under case law was that employers were not prevented from subjecting employees who took part in industrial action to a detriment short of dismissal. Some employers have used this to their benefit in seeking to discourage strike action. It is clear that the protection offered by TULRCA has now widened so as to prohibit detrimental treatment as well as dismissal where employees take strike action. It is important for employers to be aware of this.
Employers should also be sure to give careful consideration as to how any list of staff taking part in industrial action is used. Any use for the purposes of subjecting employees to detrimental treatment will fall foul of the Blacklisting Regulations.
It is worth noting that the decision in Mercer is being appealed to the Court of Appeal.
