Under the Blacklist Regulations (the Regulations) it is unlawful to compile, use or sell a list of people who take part in trade union activities. The is known as a "prohibited list".
In Morais and Others v Ryanair DAC and Another, the Court of Appeal considered whether workers who take part in official strikes are protected from being unfairly treated by their employer. The case involved a group of pilots who participated in a strike organised by their union, the British Airline Pilots' Association (BALPA). After the strike, Ryanair withdrew certain travel benefits from the pilots, claiming they were not entitled to these benefits due to their participation in the strike.
The pilots argued that the withdrawal of their travel benefits was a detriment resulting from their participation in the strike and that by singling out those who had taken part in strike action Ryanair had created a 'prohibited list' under the Regulations.
At its appeal stages the case focused on whether workers who take part in such strikes have legal protection against actions like being blacklisted or losing benefits.
The Court ruled that workers are indeed protected from such treatment under the Regulations and this protection applies regardless of whether the union followed all the formal procedures typically required for a strike.
Ryanair argued that the pilots should not be protected because the union’s strike action did not meet certain procedural requirements, such as notifying the company in advance. Essentially, Ryanair claimed that protections against detriment under the Regulations should only apply if the union had followed all the legal steps for calling a strike.
The Court rejected Ryanair's argument, ruling that workers who participate in official union action, like strikes, are protected from detriment under the Regulations regardless of whether the union has complied with all legal formalities.
The Court made it clear that this protection is not dependent on whether the strike action is legally immune from claims against the union, but rather focuses on the fact that the workers were engaging in a recognised union activity.
This case highlights the risks associated with singling out those who take part in industrial action (or other trade union activities) for detrimental treatment. Doing so is likely to be seen as a breach of the Blacklist Regulations.
It also important to note that following the Supreme Court decision in Mercer v Alternative Future Group the Employment Rights Bill contains measures that will amend existing legislation to provide protection against detriment short of dismissal on the grounds of industrial action, whether or not the Regulations are engaged.