Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects workers from detriment in situations including those that prevent or deter that worker from taking part in the activities of an independent trade union at “an appropriate time”. It has long been interpreted as not including industrial action.
In Ryanair DAC v Morais and ors, as in the case of Mercer v Alternative Future Group Ltd earlier this year, the EAT has held that s146 does protect workers involved in industrial action from suffering detriment from their employer.
In the Ryanair case, the EAT has gone one step further and ruled that all industrial action is ‘protected’ (in essence, lawful) under s146.
In 2019, a number of Ryanair pilots, members of BALPA (British Airline Pilots Association), took strike action against Ryanair. In response, Ryanair withdrew concessionary travel benefits.
Ryanair applied for an injunction to restrain the industrial action but then withdrew that injunction application.
The pilots brought claims in the employment tribunal on the basis that the withdrawal of the travel benefit was a detriment prohibited by s146. The legislation states that employers cannot subject workers to detriment if the sole or main purpose of such action is “preventing or deterring him from taking part in the activities of an independent trade union at an inappropriate time, or penalising him for doing so” (s146(1)(b)).
The pilots brought these claims despite the fact that the definition of “activities of an independent trade union” under that section had previously been interpreted as excluding industrial action. It had been thought that workers who went on strike and suffered a detriment as a result were not protected.
Important within this is what “an appropriate time” means. It is defined in s146 as a time outside the worker’s working hours, or a time within working hours when it permissible to take part in the activities of a trade union (in accordance with arrangements agreed with or consent by the employer).
The pilots also sued under Regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (Blacklists Regs). That regulation protects workers against detriment in relation to a prohibited list. Prohibited lists contain details of people who have taken part in trade union activities.
Ryanair sought to argue in front of the tribunal that the strike was not one that was protected in law and so the provision of s146 did not apply to the pilots. The argument that pursued by Ryanair that the strike was not protected had been run in earlier proceedings in the High Court injunction. However, those proceedings by Ryanair had been discontinued by consent. Accordingly, the tribunal held that this was not an argument that Ryanair could be permitted to advance before it in this case.
The tribunal, in a preliminary hearing, found that the pilots were taking part in trade union activities both for the purposes of s146 TULRCA and Reg 9 Blacklists Regs. The tribunal also held that in order for industrial action to be caught by the s146 protection, it had to be ‘protected’ industrial action.
Ryanair appealed the employment tribunal findings and the pilots cross-appealed in relation to whether it mattered whether or not the strike was a protected one.
Between the lodging of those appeals and the Ryanair decision, the case of Mercer had been decided by the EAT. It is worth revisiting this case.
Mrs Mercer was employed by the Alternative Future Group, a health and social care charity as a support worker. She was a workplace representative for Unison. There was a strike, which she helped organise and in which she intended to take part, in relation to payments for sleep-in shifts. She was then suspended in response.
She brought a claim in the employment tribunal including under s146, claiming that she had been subjected to a detriment in being suspended; she alleged that decision had been taken to prevent or deter her from taking part in the activities of an independent trade union at the appropriate time, or penalising her for having done so. The claimant's case was that the “activities” encompassed both the planning and organisation of the industrial action and her own participation in it.
Whilst the tribunal rejected the argument that s146 covered participation in industrial action, it noted that the UK had failed to provide clear and effective protection for industrial action, which was a right guaranteed under Article 11 of the European Convention on Human Rights, which enshrines in law the right to form and join trade unions. In this case, Mrs Mercer’s human rights had been breached as s146 was incompatible with her Article 11 human rights.
Mrs Mercer appealed to the EAT. The EAT agreed that Mrs Mercer’s human rights had been breached but found that it was possible to read s146 in a way that was compatible with Article 11. What this meant was that the EAT read “appropriate time” in s146 as a “time within working hours when a worker is taking part in industrial action.” Accordingly, industrial action became protected under s146, and it would be unlawful for workers to suffer a detriment as a result of participation in industrial action.
In line with its decision of the EAT in Mercer, in the Ryanair case, the EAT held that the pilots’ protections under s146 had been breached as well as their rights under the Blacklists Regs. They also held that it was not relevant whether or not the action was protected industrial action.
Mercer is on its way to the Court of Appeal so the law here is far from being settled.
Unionised employers would do well to hold fire on any practices that withdraw or reduce benefits for workers engaging in industrial action. This has been a common practice until now including within well-known and high-profile organisations. These two cases have turned what was a long thought principle in industrial relations on its head.