The EAT has handed down its ruling in the Ryanair pilots strike dispute and it is a significant one. It is now clear that employees who take part in official, or unofficial, trade union industrial action are protected from detriment under the Trade Union and Labour Relations (Consolidation) Act 1992. They are also protected under the Blacklists Regulations. The upshot is the case offers greater protection than many had previously thought and it means employers must tread very carefully when it comes to how you treat staff involved in industrial action, and what you do with any lists you compile. More on that shortly.
First, the background law. Under section 146 of TULR(C)A 1992 it is unlawful for an employer to subject a worker to any detriment, by any act or deliberate omission, where the sole or main purpose is, among other things, to prevent or deter the worker from taking part in the activities of an independent trade union at an appropriate time. According to the EAT in a case called Mercer, decided in June this year, section 146 ‘activities’ must be read as including industrial action to be compatible with Article 11 of the European Convention on Human Rights. In addition, there are separate regulations outlawing blacklisting which means it is unlawful for employers to compile, supply or use a ‘prohibited list.’ This includes a list containing details of persons who are taking part or have taken part in trade union activities and which is compiled for discriminatory purposes, meaning for the purpose of treating a person less favourably on grounds of trade union activities.
This goes back to August 2019 when Ryanair pilots voted for strike action brought by BALPA, the pilots union recognised by Ryanair. This attracted national media attention at the time and, as the BBC reported, Ryanair warned those pilots considering participating in the strike that if they did participate they would have their concessionary travel benefits withdrawn. In September 2019 the claimants all participated in a strike called by BALPA and Ryanair, true to its word, withdrew concessionary travel benefits from those pilots for a 12-month period. The company also compiled a spreadsheet giving names of strikers which was sent to their Dublin HQ and used to update rosters, and other systems, which were then used by the staff travel department to suspend each pilot’s ability to book concessionary travel.
The pilots, backed by BALPA, presented employment tribunal claims alleging detrimental treatment for participation in trade union activities under section 146 of the ’92 Act and detrimental treatment under the 2010 Blacklists Regulations. Following a two-day hearing, the EAT rejected each of Ryanair’s grounds of appeal, finding in the pilots’ favour on all issues.
So let’s get some reaction to this. Jon Coley has been following the litigation closely and has advised clients many times over the years in similar circumstances when industrial relations become strained. Jon joined me by video-link from Birmingham to discuss the case. I started by asking Jon why it’s important:
Jon Coley: “I think it's important for employers from two perspectives where they are running into trouble with the trade union. If they've got employees out on strike, or looking to go on strike action, then employers need to be aware of this case and the case that it follows, the Mercer case earlier in the year and the reason for that is twofold. In this case, what happened is Ryanair, in relation to those members of staff who went on strike, took away their travel concessionary benefits for a 12 month period. The trade union brought action based on two fronts. Firstly, that they should not subject members to a detriment as a result of taking part in trade union activities, i.e. removing their travel concessions for going on strike. Secondly, that Ryanair had fallen foul of the blacklisting regulation in that they had kept a list of those trade union members who have been on strike and then they had used that list for the purposes of subjecting those members to a detriment, or discrimination, as a result of taking part in trade union activities.”
Joe Glavina: “So, on a practical level, what should employers take from this case, Jon?”
Jon Coley: “So, what employers can take from that is twofold, really. First, in relation to keeping a list of those members of staff who have been on strike, you need to be very careful what you do with that list. So from an HR perspective, I can understand why you need to keep a list to make sure that you are administering strike pay properly in relation to members of staff who may have been on strike, but then you shouldn't take that list and use it for other purposes which may include, for instance, as Ryanair have done here, to remove a benefit from those members of staff who have been on strike. Secondly and importantly as well, is actually you need to be very careful about any action, any detrimental action, you take in relation to members of staff for being on strike whether that is denying them promotion, access to a benefit as in the Ryan a case, or possibly access to a bonus scheme or anything else of that description, if that action is taken, because of the fact that those members of staff have been on strike.”
Joe Glavina: “I think the Mercer case is going to the Court of Appeal, Jon, but meanwhile does this EAT judgement represent a change in the law?”
Jon Coley: “That’s right, Joe, the Mercer case is going to the Court of Appeal, and it does represent a change in the law. The reason that it represents a change in the law is pre the Mercer case the case law had confirmed that, for the purposes of subjecting somebody to a detriment as a result of taking part in trade union activities, trade union activities did not include strike action. It didn't include strike action because trade union activities needed to take place either outside work hours, or within work hours with the employer’s consent. The Mercer case confirmed, as a number of commentators that considered for some time, that actually that meant that the UK legislation potentially fell foul of the European Convention on Human Rights and in particular Article 11 which is the Article for freedom of association and the right of people to join a trade union. The reason being obvious that if you subjected somebody to a detriment for taking part in trade union activities you are effectively discouraging them from being a member of a trade union. Of course we know, and it's been a long established principle, that UK legislation needs to be read, so far as possible, to be compatible with the European Convention on Human Rights and the court in Mercer recognised that, potentially, the UK legislation, if it wasn't read so that trade union activity included going on strike action, then it will put UK legislation on the wrong side of the European Convention on Human Rights.”
Joe Glavina: “I imagine over the years you’ve seen situations develop, like the one faced by Ryanair, and seen how the unions react. Tell me about that.”
Jon Coley: “I have seen this in practice a number of occasions, Joe, and that is principally when clients have taken action against members of staff for being on strike for being on strike, whether that has included removing them from the bonus scheme. We had one client who denied members of staff who have been on strike the ability to earn a bonus for that particular month. The trade union bought blacklisting claims arguing that the only way that that particular client could have known who was on strike, and therefore who shouldn't be entitled to their bonus for the period in question, was if they kept a list and the purpose of that list was to subject those members of staff to a detriment, and or discrimination, as a result of taking part in trade union activities, i.e. going on strike action. So, it's a claim and a tactic that the unions are well versed in and well used to using against employers who do take action against the members of staff who take strike action.”
That judgement of the EAT is Ryanair DAC v Morais & Others and we have put a link to it in the transcript of this programme. Also be aware we have a comprehensive guide on Industrial Action which, incidentally, has just been updated – that’s available now from the Outlaw website.
- Link to judgment Ryanair DAC v Morais & Others