In Ryanair DAC v Morais and others, the EAT found that workers who take part in industrial action are protected from a detriment connected with their trade union activities, regardless of whether this was ‘protected industrial action’ lawfully organised by a union and compliant with the statutory balloting requirements.

Background

In June 2021, the EAT’s decision in  Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening) extended the scope of protection for employees taking part in or preparing for industrial action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) (see our insight on that case here).

The EAT has now cemented that decision and extended the protections for striking employees even further.

The Claimants in Ryanair v Morais and others participated in a strike called by their recognised trade union (BALPA). In response, their employer withdrew their concessionary travel benefits for a year. The Claimants submitted Employment Tribunal claims alleging that this action amounted to unlawful detriment in breach of:

• Section 146 of TULCRA - which protects employees from being subjected to a detriment by their employer for taking part in ‘trade union activities’; and
• Regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (Blacklists Regulations) - which renders unlawful any detriment in relation to a ‘prohibited list’ (a list which contains details of persons who have taken part in trade union activities, and which is compiled with a view to being used for discriminatory purposes, as defined in Regulation 3.)

At a Preliminary Hearing, the Employment Tribunal (ET) held that:

• The Claimants were taking part in trade union activities for the purposes of both claims;
• It would usually be necessary to consider whether the industrial action in question was protected or not (but it was not required to do so in this case as there were High Court decisions concerning the employer and BALPA that had already determined that it was protected); and
• The Claimants were protected under the Blacklisting Regulations even though certain actions relating to the withdrawal of benefits had taken place in Dublin, and not in the UK.

The employer appealed to the EAT and the Claimants cross-appealed the finding that protection depended upon the strike action being protected industrial action (in other words, action that was lawfully organised by a union and compliant with balloting requirements).

The EAT’s decision

The EAT held that:

• In accordance with previous case law (including Mercer), it was clear that Section 146 of TULCRA “is to be read as encompassing participation in industrial action”.
• It is not necessary to consider whether the industrial action was protected or not; both Section 146 of TULCRA and Regulations 3 and 9 of the Blacklisting Regulations apply to all union industrial action, without qualification or restriction.
• The employer’s territorial scope argument in relation to the Blacklisting Regulations had been correctly rejected by the ET, on the basis that all the Claimants were based in the UK and so were entitled to bring claims relating to their employment in the ET.

What to take away

This decision is another significant development in the field of industrial relations law.

The EAT is clear that both Section 146 TULCRA and the Blacklisting Regulations protect employees from detrimental (short of dismissal) by their employer because of their involvement, or planned involvement, in any industrial action (whether protected or otherwise).

However, this is not the last word on the matter - the appeal against the EAT’s decision in Mercer is due to be heard by the Court of Appeal in January 2022.

In the meantime, we recommend that employers exercise caution when dealing with employees who participate in or are involved in preparing for any industrial action.

How Capsticks can help

Unfortunately, it is not always possible to avoid industrial action. Capsticks has significant experience of supporting employers before, during and after a dispute (including delivering training; supporting decision makers and HR involved in resolution of the dispute, management of staff and services and contingency planning; and, defending any legal challenges / claims that may arise).

For further information on how we might assist your organisation, please contact Paul McFarlane, Alistair Kernohan or Chloe Edwards.