Trade Unions: Protection from detriment for striking workers

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Trade Unions: Protection from detriment for striking workers

Published 7 December 2021

The EAT has held that a group of pilots who participated in a strike were protected from suffering detriment connected to doing so irrespective of whether the strike itself was protected industrial action.

THE FACTS

A group of pilots employed by Ryanair participated in a strike called by the recognised trade union, BALPA.  In consequence, Ryanair withdrew concessionary travel benefits from the pilots for a year.

The pilots claimed in the employment tribunal that they had been subjected to an unlawful detriment because Ryanair’s actions had been aimed at “preventing or deterring [them] from taking part in the activities of an independent trade union”.  They argued that this prohibited by the UK legislation governing trade union activities (the Trade Union and Labour Relations (Consolidation) Act 1992, usually known as “TULR(C)A”).  The pilots also claimed that they had suffered a detriment because of being on a “prohibited” list (usually known as a blacklist).

A case in 1980 had held that employees taking part in industrial action were not protected from suffering a detriment by TULR(C)A, though they are protected from dismissal.  However, the tribunal in this case held that protection from detriments for participating in industrial action should be read into the relevant provisions in TULR(C)A to comply with Article 11 “Freedom of assembly and association” right under the Human Rights Act 1998. 

The tribunal also held that it would usually have to consider whether the strike itself constituted “protected industrial action”: if the industrial action was not protected, the striking employees would not be protected.  In this case, however, the tribunal ruled that it was not open to Ryanair to argue that the strike was not protected, given the conduct and outcome of earlier High Court proceedings against the union in relation to the strike.

The tribunal also ruled that the pilots were protected by the blacklisting legislation.

Ryanair appealed the tribunal’s decision in the EAT.  The pilots cross-appealed, arguing that it was not relevant whether the strike was “protected industrial action”.

In deciding whether the pilots were protected from suffering detriment by TULR(C)A, the EAT considered existing UK case law in light of another EAT judgment, the Mercer case, which was handed down between the date of the tribunal hearing and the EAT hearing.  The EAT upheld the tribunal’s judgment on this point. 

The EAT allowed the pilots’ cross-appeal.  It held that the tribunal should not have found that striking workers will only be protected if the industrial action itself is protected.  This would not be compatible with European legislation and Article 11.  To be compatible with these, TULR(C)A must extend to workers who participate in all union industrial action, regardless of whether such action is protected.

The EAT also held that striking workers are protected by the blacklisting legislation.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Following this case, striking employees will be protected from suffering a detriment whether or not the industrial action itself follows a lawful ballot.  This will give striking workers significant additional protection.  It remains to be seen how far this principle goes, for example, does it cover organising industrial action?  The EAT case of Mrs F Mercer v Alternative Future Group Ltd and Others (concerning Trade Union activities) is being appealed to the Court of Appeal so we have not heard the last of this issue. Our previous article regarding this case is linked below.

Ryanair DAC v Mr B Morais and others

Industrial Action: Protection from suffering a detriment for participating in industrial action (July 2021)

Authors

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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