On 26 February 2026, the government published a consultation on the issue of how detriment should be defined for the purposes of the new protection from detriment for taking industrial action under the Employment Rights Act 2025 (ERA 2025).
Facts
The ERA 2025 provides that a worker will have the right not to be subjected to a detriment by their employer (by any act or deliberate failure to act), whose sole or main purpose is to prevent or deter the worker from taking protected industrial action, or to penalise them for doing so. This is intended to address the gap in the current law that was identified by the Supreme Court in the Mercer case, that workers currently have no protection against sanctions short of dismissal for taking part in lawful industrial action (see our report on Mercer here).
However, under the ERA 2025, protection will only apply in respect of detriments of a "prescribed description". This reflects the fact that the Supreme Court in Mercer said it couldn't rule out the possibility that there may be some circumstances in which it would be legitimate for employers to subject workers to a detriment for participating in industrial action.
Regulations are required to set out what should constitute detriments of a "prescribed description", and the government is now consulting to gather views on this issue.
The consultation notes that the Supreme Court stated in Mercer that non-payment of a worker for time spent participating in a strike does not amount to a detriment. The government is not proposing to change this, and nor is it proposing to treat deductions from pay to reflect partial performance during action short of a strike as a detriment. The consultation also makes clear that protection from detriment under the ERA 2025 applies to the worker "as an individual". Accordingly, actions that might be detrimental to the union rather than the worker individually, such as de-recognition or refusing to negotiate with the union, would not be considered detriments in this context.
Protection under the ERA 2025 will apply where the employer's sole or main purpose in imposing the detriment is to penalise, prevent or deter the worker from taking industrial action. Employers will therefore not be prohibited from taking action that might otherwise be classed as a detriment where their sole or main purpose is not one of those set out above. The consultation gives the example of an employer sanctioning a worker for behaviour during industrial action which amounted to misconduct, such as harassment or bringing the business into disrepute. However, the burden is on the employer to show what their sole or main purpose was in imposing the detriment.
The consultation presents two options to identify detriments that should be protected:
- Option A - all detriments imposed for the sole or main purpose of penalising, preventing, or deterring a worker from taking industrial action would be prohibited
- Option B - regulations would set out a list of detriments that would be prohibited if they are imposed for the sole or main purpose of penalising, preventing, or deterring a worker from taking industrial action
The government's preferred option is Option A. The consultation notes that this would provide the greatest protection for workers and would be consistent with the approach to protection from detriment for trade union membership or activities. According to the government, it would also provide greater clarity; prevent employers acting in bad faith from getting around the protection by devising "novel" detriments that are not included in a statutory list of proscribed detriments; and be "future proof" - avoiding the need for frequent updating of regulations as new forms of detriment emerge. It would also be consistent with the approach in other European countries including France, Germany, Italy, Portugal and Spain.
The consultation acknowledges that prohibiting all detriments may affect employers' abilities to manage industrial action, but suggests that employers could do this in other ways, such as proactive negotiation with the union in advance of any action, or contingency planning to mitigate impacts.
What does this mean for employers?
Employers will be in favour of limiting the types of detriments that will be prohibited. The broader the types of prohibited detriments, the more likely it is that a worker who is aggrieved by usual business processes (such as promotion or bonus decisions) that occur around the time of industrial action might try to claim that they have been subjected to a prohibited detriment. Defending such claims is likely to be costly and time consuming, particularly given that the burden is on the employer to prove that the purpose of their actions was not to penalise, prevent or deter the worker from taking industrial action.
This consultation closes on 23 April 2026. The government will then consider responses and produce draft regulations. The substantive changes to the law are expected to take effect in October 2026.
Make Work Pay: protection from detriments for taking industrial action
