Discrimination against blacklisted workers who took industrial action found to be unlawful

In a recent Court of Appeal case, it was held that the Employment Relations Act 1999 (Blacklists) Regulations 2010 include protection of those who have taken part in industrial action.

The Employment Relations Act 1999 (Blacklists) Regulations 2010

The Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklisting Regulations) make it unlawful for employers, employment agencies and others to compile, supply or use a blacklist of trade union members or activists for discriminatory purposes.

Morais and ors v Ryanair DAC and anor

In September 2019, a group of Ryanair pilots took industrial action organised by the British Airline Pilots’ Association (BALPA) in a dispute over pay and conditions. Following the strike, the airline kept a list of striking employees and used it to withdraw the pilots’ concessionary travel benefits for a year. This action had been threatened by Ryanair prior to the strike action commencing.

Affected pilots challenged Ryanair’s actions in the Employment Tribunal and were successful, with the decision being upheld by the Employment Appeal Tribunal.

Ryanair appealed to the Court of Appeal on two grounds, the first of which was withdrawn following a Supreme Court Judgment in another case. The remaining ground to be determined by the Court of Appeal was whether the Blacklisting Regulations protected striking workers from discrimination.

The Court of Appeal ruled in favour of the pilots, confirming that:

  • Going on strike constitutes ‘activities of a trade union’, under the Blacklisting Regulations.
  • Employers cannot compile or use a list of striking employees to discriminate against them, regardless of whether the industrial action meets all statutory requirements.

Comment

This decision confirms that striking workers are protected under the Blacklisting Regulations, such that employers cannot penalise workers for striking by maintaining blacklists or using those blacklists to discriminate against workers. Employers are also unable to use retaliatory measures in an attempt to prevent lawful industrial action.

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