Staff Participating in Industrial Action Protected From Detriment

... with many independent schools facing ballots for industrial action for the first time in their history.

Schools facing industrial action need to be aware of a recently reported EAT case which confirms that staff who participate in industrial action will have legal protection from being subjected to any detriment as a result.

Protection for Trade Union Activities

In September 2019, pilots at Ryanair participated in a strike called by BALPA, the recognised trade union. Ryanair responded by withdrawing their concessionary travel benefits for a year. The Claimants presented claims to the Employment Tribunal arguing, amongst other things, that the withdrawal of their benefits constituted an unlawful detriment contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which protects workers from detriment connected with trade union activities.

At the initial hearing, the Tribunal upheld the claim, concluding that, by striking, the pilots were taking part in a trade union activity and so were protected under the provisions of section 146 of the TULRCA. Ryanair subsequently appealed against the Tribunal's decision.

What Was the EAT's Decision?

The EAT dismissed the appeal, holding that section 146 of TULRCA confers protection on workers who take part in industrial action. In reaching its decision, the EAT built on and applied the reasoning in the recent case of Mercer v Alternative Futures Ltd  in which the EAT had previously considered the scope of the protection offered by section 146 of TULRCA and that trade union activities could include industrial action.

In this case the EAT went even further than in Mercer and clarified that the protection for workers participating in industrial action should extend not just to those participating in 'protected' industrial action (that is action which is lawfully organised by a union and compliant with balloting requirements) but to those participating in any form of union endorsed or authorised industrial action.

What Does This Mean for Schools?

This is a significant decision which builds on the additional protection for workers taking part in industrial action. Schools will therefore need to need to be very careful about how they handle any industrial action, both when proposed or when taking place, to ensure any participating employees are not subjected to any unfavourable treatment that would fall foul of TULRCA.

We would recommend that prior to commencing any staffing project consideration is given to relationships with trade unions, and thought given to the school's position in the event that industrial action is threatened. The threat of industrial action is a significant one for schools and tensions can rise in the middle of a dispute. It is important that all school leaders are aware of the legal protections for staff in these situations.

For further support on these issues please contact Naseem Nabi in our Independent Schools team on 07500 702450, or complete the form below.