Consultation on protection from detriment for taking industrial action

Background

In Secretary of State for Business and Trade v Mercer, the Supreme Court held that the existing protection against detriment under section 146 of TULRCA does not extend to participation in lawful industrial action. The Court made a declaration of incompatibility with Article 11 of the European Convention on Human Rights, on the basis that UK law did not provide any protection against detriment short of dismissal for taking strike action.

The Employment Rights Act 2025 (Act) creates a new right for an individual not to be subjected to a detriment of a “prescribed description” where the employer’s sole or main purpose is to penalise, prevent or deter participation in protected industrial action. The Act left the detail to be set out in secondary legislation.

Options under consideration

The government is now seeking views on the types of detriment which should be prohibited. The consultation sets out two principal approaches:

• Option A – prohibiting all types of detriments imposed for the sole or main purpose of penalising, preventing or deterring industrial action; and
• Option B – creating a prescribed list of prohibited detriments.

The paper expressly identifies Option A as the government’s lead option. This would mirror the structure of current protections for union activity or membership, and give workers the strongest protection by avoiding limiting protection to specified categories.

However, the consultation makes clear that, even under Option A, lawful deductions from pay for strike action would not be treated as a detriment. This includes deductions for partial performance during action short of strike, where currently permitted. The intention is therefore not to alter the established principle that workers are not entitled to pay for time not worked.

In all cases, the statutory “sole or main purpose” test would apply. Action taken for other reasons, for example, to address misconduct occurring during industrial action, would not be caught if the employer can show that the prohibited purpose was not the sole or main reason.

Acas Code uplift

The consultation also proposes that, in claims of this type, Employment Tribunals would have the power to adjust compensation by up to 25% where either the employer or the employee has unreasonably failed to follow the Acas Code of Practice on Disciplinary and Grievance Procedures. This would mirror the approach already taken in certain other employment claims and is intended to encourage compliance with the Code.

Learning points for employers

Employers should monitor the consultation outcome and review how industrial action is managed in practice, including disciplinary processes and communications. The scope of what may amount to a prohibited detriment will depend on the approach ultimately adopted in the secondary legislation, which is currently expected to take effect in October 2026.

The consultation will close on 23 April 2026.  Those wanting to take part can find the consultation on the Make Work Pay website. 

---

For support or advice, please contact Georgia Blesson in our Employment team.