Striking workers are protected against detriment by the Blacklisting Regulations

In Morais and others v Ryanair DAC and another [2025] EWCA Civ 19, the Court of Appeal recently ruled that a worker participating in official strike action was taking part in the ‘activities of trade unions’ and, therefore, was entitled to benefit from the protection offered by the Blacklisting Regulations. 

The decision offers workers taking part in official industrial action a new route to obtain legal protection and avoid the legislative loophole identified by the Supreme Court in its decision in the Mercer case last year.

The Mercer loophole 

In summary, under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), a worker is given various legal protections when they:

• join a union,
• access its services;
• take part in the trade union’s activities; or
• participate in official industrial action. 

The Supreme Court last year identified a ‘gap’ or ‘loophole’ in these legal protections, holding that taking part in official industrial action was excluded from the definition of taking part in a trade union’s activities for the purposes of protection against detrimental treatment short of dismissal (Secretary of State for Business and Trade v Mercer [2024] UKSC 12).

The Supreme Court declared that s146 of TULRCA, the legal provision which protects workers against detriment when they take part in a trade union’s activities, was incompatible with Article 11 of the European Convention on Human Rights, which provides workers with the right to freedom of assembly and to form/join trade unions. 

As it was not possible to interpret s146 of TULRCA so as to comply with Article 11, the Supreme Court issued a declaration of incompatibility.

In practical terms, this legislative loophole identified in Mercer (the ‘Mercer loophole’) meant that, under the TULRCA protections, whilst it would be automatically unfair to dismiss workers for taking part in industrial action, the employer could subject them to a detriment short of dismissal for doing so. 

In these circumstances, the worker’s only legal remedy for being penalised in this way would be to make an application to the European Court of Human Rights.

The Blacklisting Regulations

That is not the end of the matter though, because trade union members are also given additional protection under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the ‘Blacklisting Regulations’). 

These regulations make it unlawful for any person to compile, use, sell or supply a prohibited list (a ‘blacklist’), which contains details of persons who are/have been members of trade unions, or persons who are/have taken part in the activities of trade unions, if this blacklist has been compiled or disseminated with a view to it being used for the purposes of discriminating against the blacklisted workers in relation to recruitment, or by otherwise treating them less favourably. 

Under Regulation 9 of the Blacklisting Regulations, it is unlawful for an employer to subject a worker to a detriment for a reason that relates to a prohibited blacklist.

It is also automatically unfair to dismiss the worker for the sole or principal reason relating to a prohibited blacklist (s104F Employment Rights Act 1996).

The Court of Appeal has recently considered the scope of this legal protection of workers against blacklisting, specifically whether it could include a list of workers who have taken part in official industrial action created by an employer.

The factual background to the Morais dispute

The dispute before the Court of Appeal in Morais arose after a group of airline pilots, employed by the airline Ryanair, participated in strike action called by their recognised trade union, the British Air Line Pilots’ Association (BALPA) in a disagreement about their pay and conditions. 

Prior to the strike action taking place, Ryanair sought an injunction complaining about the BALPA’s compliance with the strict strike balloting and notification requirements, compliance with which would render the strike to be regarded as ‘protected’ industrial action.

The High Court rejected Ryanair’s injunction application and held that the BALPA was likely to succeed at trial in proving that it had complied with the rules and that this was therefore protected industrial action.

Ryanair was ordered to pay BALPA’s costs associated with defending its unsuccessful injunction application. 

Thereafter, Ryanair circulated a memo to all its UK based pilots warning: 

‘As you know, staff travel is a discretionary benefit…any UK based pilot who engages in any further BALPA strikes…will have all staff travel privileges removed for 12 months.’

Further strike action took place on 18 and 19 September 2019. 

On the second day of the strike, the airline wrote to all those pilots who had participated in the strike action confirming the withdrawal of their discretionary staff travel privileges for a period of 12 months, cancelling any existing travel bookings they had made using those privileges, and threatening disciplinary action up to and including dismissal if they attempted to use their staff travel privileges during the one-year period. This was in line with the memo it had issued.

Following this, Captain Morais and a number of other affected pilots (the ‘pilots’) brought claims arguing that the withdrawal of their discretionary travel benefits, after they had participated in strike action, constituted an ‘unlawful detriment’ for taking part in the activities of a trade union under s146 of TULRCA and/or in relation to a prohibited blacklist under Regulation 3(2) of the Blacklisting Regulations.

The pilots claim under the Blacklisting Regulations was based on the argument that Ryanair had created or otherwise compiled a prohibited blacklist of those BALPA members who had taken part in the strike action, in order to penalise those pilots by withdrawing their discretionary benefits.

The Employment Tribunal upheld the pilots’ claims and its decision was later upheld by the Employment Appeal Tribunal. The airline appealed to the Court of Appeal. 

Following the Supreme Court’s decision in Mercer, the pilots’ withdrew their claim under s146 of TULRCA, meaning only their claim under the Blacklisting Regulations remained.

What did the Court of Appeal hold?

The key remaining question before the Court of Appeal related to the scope of the Blacklisting Regulations, specifically whether the striking pilots were entitled to protection against detriment because by participating in the strike, they had taken part in trade union activities.

The Court of Appeal dismissed Ryanair’s appeal, and upheld the Employment Tribunal’s decision and held that when a worker organises or participates in official (our emphasis) industrial action, such as taking part in strike action, they are taking part in the ‘activities of a trade union’ for the purposes of the protection against detriment under Regulation 3(2) of the Blacklisting Regulations.

There could be no real dispute that the natural meaning of the relevant phrase includes organising and taking part in industrial action.

The Supreme Court’s decision in Mercer strongly supported the need to adhere to the natural meaning of words when construing legislation. Although the Court in Mercer had reached a different conclusion about participation in trade union activities, it was interpreting the entirely separate legislative provisions contained in s146 of TULRCA, which required the relevant activity to be taking place ‘at an appropriate time’. This phrase is not included in the Blacklisting Regulations.

To be included in the scope of the Blacklisting Regulations, and secure access to the protection against detriment under Regulation 9 of those regulations, the relevant industrial action must be ‘official’. That means it must be organised or endorsed by the trade union under its rules. In practical terms, this means that workers taking part in unofficial industrial action, such as participation in a wildcat strike, will not qualify.

However, there is no requirement under the Blacklisting Regulations for the industrial action to be ‘protected’ (i.e., to actually meet all the statutory requirements under TULRCA regarding balloting, notice, etc). 

In the alternative, the Supreme Court held that Ryanair's attempt to relitigate the lawfulness of the ballot – an argument it had lost before the High Court when its injunction application was rejected prior to the strikes – amounted to an abuse of process.

What does the decision mean in practical terms?

The Supreme Court has clearly ruled that it is unlawful under the Blacklisting Regulations for an employer to compile, use or disseminate a list of workers who took part in official industrial action if this is done for the purposes of discriminating against them or subjecting them to detrimental treatment.

There is no equivalent of the Mercer loophole in the Blacklist Regulations. We understand that Ryanair has applied for permission to appeal to the Supreme Court. 

The Employment Rights Bill, which is currently progressing through parliament, contains provisions designed to fill the Mercer loophole and ensure that workers have protection from detriment for participating in lawful industrial action.

Meanwhile, the Court of Appeal’s decision in Morias provides workers with a possible route to bypass the Mercer loophole. When workers strike, or take other forms of official industrial action, their employer cannot compile a list of participating workers in order to retaliate against them by subjecting them to detrimental treatment, such as withdrawing their discretionary benefits or barring them from training and promotion opportunities.

Glenn is a partner in the Employment Team at Hill Dickinson based in Leeds, and advises on all aspects of employment law. You can contact him via Glenn.Hayes@hilldickinson.com