Background:
This case concerns the application of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (Blacklisting Regulations) to industrial action. Ryanair appealed against the findings of the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) that its actions during a trade dispute with BALPA (the pilots' trade union) breached the Blacklisting Regulations.
Facts:
- The claimants, UK-based Ryanair pilots and members of BALPA, participated in a lawful strike following a dispute over pay and conditions.
- Ryanair retaliated by withdrawing discretionary staff travel benefits from striking pilots for 12 months.
- The pilots claimed detriment under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and breaches of the Blacklisting Regulations, on the basis that Ryanair had necessarily created and used a "prohibited list” of striking employees to apply the detriment.
Key Legal Issues:
1. Are participants in industrial action protected under the Blacklisting Regulations?
- Regulation 3 of the Blacklisting Regulations prohibits compiling or using lists to discriminate against workers for engaging in "trade union activities."
- Ryanair argued that "trade union activities" did not include industrial action, relying on Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (which found that Section 146 TULRCA does not protect participants in industrial action).
2. Does the legality of the industrial action affect protection under the Blacklisting Regulations?
- Ryanair contended that, should the Blacklisting Regulations apply to the taking of industrial action, only strike action compliant with all procedural requirements of TULRCA should be protected.
3. Was Ryanair barred from challenging the legality of the strike?
- The ET and EAT held that Ryanair’s earlier failed High Court attempt to obtain an injunction against BALPA precluded relitigating the issue.
Court of Appeal Decision:
The Court of Appeal unanimously dismissed Ryanair’s appeal.
1. Industrial Action is a Trade Union Activity for the purposes of the Blacklisting Regulations:
- The phrase "activities of trade unions" in Regulation 3 includes industrial action, consistent with its ordinary meaning and the legislative history and purpose of the Blacklisting Regulations.
- Unlike TULRCA, the Blacklisting Regulations lack a restriction that activities must occur "at an appropriate time," (being a time outside working hours or within working hours but with the employer’s consent), supporting a broader interpretation of trade union activities that includes the taking of industrial action.
- The Blacklisting Regulations also differ from TULRCA in that they do not draw a carefully structured distinction between protections for industrial action and protection for other trade union activities. This was a key factor in the Supreme Court’s decision in Mercer that interpreting s.146 TULRCA as encompassing industrial action would go against a fundamental feature of the legislation. This consideration does not apply in the Blacklisting Regulations, such that it was not inappropriate to consider industrial action a trade union activity.
- Consultation documents and government guidance explicitly stated that official industrial action qualifies as a trade union activity under the Blacklisting Regulations.
2. No Requirement for Full Compliance with TULRCA:
- The court rejected Ryanair’s argument that only industrial action that fully completes with TULRCA is protected under the Blacklisting Regulations. Protection applies to all official industrial action organised or endorsed by a trade union under its rules, regardless of compliance with TULRCA’s procedural requirements.
- The court emphasised that the Regulations’ aim to prevent blacklisting rather than enforce industrial action compliance.
3. Abuse of Process:
- The court found that Ryanair’s attempt to challenge the strike's legality amounted to an abuse of process. Ryanair had already litigated and lost this point before the High Court and chose not to appeal or pursue the matter further. It was not open to Ryanair to relitigate the issue.
Significance for Trade Union Members:
- The judgment makes clear that participation in official industrial action is protected as a trade union activity under the Blacklisting Regulations. This had been in doubt following Mercer, in which it was found that UK law was incompatible with the European Convention on Human Rights insofar as it failed to offer any protection against detrimental treatment imposed on workers for participating in lawful strike action.
- Whilst the Government intends to amend TULRCA in light of Mercer to extend protection against detrimental treatment to striking workers, the ruling in Morais could empower unions to bring claims arising from strike-breaking detriments prior to any legislative change. However, this will only be the case where such detriments are based on “prohibited lists” (and the other requirements of a claim under the Blacklisting Regulations are satisfied).
- Employers are prohibited from using or creating lists that discriminate against workers for their participation in strikes, regardless of the strike’s compliance with all procedural formalities under TULRCA.
Outcome:
Ryanair’s appeal was dismissed. The case reinforces employers' obligations to comply with the Blacklisting Regulations and provides an alternative route to challenge detrimental treatment taken against striking workers that can be pursued notwithstanding the ruling in Mercer.
