Striking employees protected from detriment under TULRCA and Blacklisting Regulations

Following on from the decision in Mercer, in Ryanair DAC v Morais and others the EAT held that the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) which protect workers from detriment connected with trade union activities, confer protection on workers who take union industrial action, regardless of whether such action is protected. The EAT also held that striking workers are protected from detriment under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (Blacklisting Regulations).

A group of airline pilots employed by Ryanair participated in a strike called by BALPA, the recognised trade union. Ryanair withdrew concessionary travel benefits from the pilots for a year. The pilots brought claims in the employment tribunal arguing that the withdrawal of benefits constituted an unlawful detriment under section 146 of TULRCA. They also claimed under regulation 9 of the Blacklisting Regulations, which outlaws detriment in relation to a "prohibited list".

Following a preliminary hearing, the tribunal held that the pilots were taking part in trade union activities for the purposes of both the Blacklisting Regulations and section 146(1)(b) of TULRCA. Although the EAT had ruled in Drew v St Edmundsbury Borough Council [1980] IRLR 459 that unfair dismissal protection for taking part in the activities of a trade union at an appropriate time did not extend to participation in industrial action, the tribunal considered that it was required, under section 3 of the Human Rights Act 1998, to interpret section 146 as embracing participation in a strike in order to protect the pilots' trade union rights under Article 11 of the ECHR. The tribunal concluded further that it would ordinarily be relevant to consider whether the strike constituted protected industrial action (and would therefore be subject to a "protected period" in relation to unfair dismissal under section 238A of TULRCA). However, it ruled that it was not open to Ryanair to argue that the strike was not protected given the conduct and outcome of earlier High Court proceedings against BALPA relating to the strike. There was sufficient proximity between the union and the claimants, such that it would be an abuse of process to allow this argument. The tribunal also rejected Ryanair's territorial scope argument, that the pilots were not protected under the Blacklisting Regulations since certain actions relating to the withdrawal of benefits had taken place in Dublin, not in the UK.

Ryanair appealed against the tribunal's decision and the pilots cross-appealed on the relevance or otherwise of whether the strike action was protected industrial action. Before the appeal was heard, the EAT handed down its decision in Mercer.

The EAT dismissed Ryanair's appeal, and allowed the pilots' cross-appeal. The EAT began by considering the domestic authorities on protection for workers participating in industrial action and trade union activities, including the EAT's recent judgment in Mercer. It concluded that:

• "Trade union activities", in its ordinary natural meaning, embraces participation in union industrial action.
• Strikes, or other forms of action during working hours, are not "at an appropriate time" for the purposes of section 152, but section 238, which defines the scope of the unfair dismissal protection in relation to industrial action, applies to all industrial action, including, for example, a ban on voluntary overtime.

The effect of section 238 is that it overrides section 152 in respect of all industrial action, even in cases where the nature of the action is such that it would not be taken out of the scope of section 152 by not being "at an appropriate time".

In Mercer, the EAT concluded that this analysis of the domestic scope of section 152 then reads across to section 146, so that all industrial action, whether or not at an appropriate time, also falls outside the scope of that section. The EAT in Mercer then "read down" section 146 by treating section 146(2) as including an additional provision to the effect that "appropriate time" includes "a time within working hours when [the worker] is taking part in industrial action". This did not go against the grain of the domestic legislation.

The EAT pointed out that this wording applies, on its natural meaning, to "taking part in industrial action" within working hours, without any qualification, thereby ensuring that all such action is not taken out of the scope of section 146 either by the "appropriate time" proviso or by the implied read-across of the express exclusion of industrial action found in section 152. However, it also noted that Mercer recognises the distinct nature of the two areas of protection (detriment and dismissal), including the fact that there is no provision in TULRCA concerned with detrimental treatment short of dismissal in respect of industrial action. Mercer therefore concluded that the Part 5 regime governing unfair dismissal casts no light on the "grain" of the policy underlying section 146 for the purpose of interpreting that provision compatibly with Article 11.

With regard to the Blacklisting Regulations, the EAT held that the tribunal had been right to conclude that taking part in trade union activities includes participating in a strike or other industrial action organised or called by the union. The EAT held that this interpretation is not restricted to protected industrial action. If the industrial action in question falls to be treated as an activity of the trade union, it will fall within the scope of regulation 3, regardless of whether it was action in respect of which section 219 of TULRCA applied. The EAT noted that there is no cross-reference in the Blacklisting Regulations to Part 5 of TULRCA and no other route by which those provisions could have any influence on its scope of meaning.

The EAT held that the tribunal had rightly rejected Ryanair's territorial scope argument. The Lawson v Serco test was met in relation to the pilots, all of whom were based in Great Britain. Accordingly, they were entitled to bring any claims relating to their employment in the employment tribunal. It made no difference that Ryanair is incorporated and based in Ireland nor that the decision, and some implementing steps, were taken there. The fact that the list used to implement the concessionary travel ban was compiled in Dublin was immaterial.

The EAT allowed the pilots' cross-appeal against the tribunal's conclusion that the section 146 protection for workers taking strike action applies only to protected industrial action. It concluded that the "read down" version of section 146 approved in Mercer encompasses all participation in union industrial action, without qualification or restriction. In the EAT's view, not only is this interpretation consistent with the reasoning in the authorities, it accords with the EAT's view on the "grain" question, contrasting the existence of the express regime in Part 5 dealing with unfair dismissal in relation to participation in industrial action, and the absence of any such express provision in relation to action short of dismissal. Therefore, if the tribunal in this case had reached its decision following Mercer, it would have had to conclude that the pilots' strike action was within the scope of section 146(1)(b) regardless of whether it was also protected industrial action. However, even if this was wrong, the tribunal's overall conclusion that this defence was not one that Ryanair could run was the correct one.