Recent ruling underlines wide reach of Blacklisting Regulations

The latest ruling in the long-running dispute between Ryanair and its pilots demonstrates that the scope of the Blacklisting Regulations is wider than many might have assumed.

The primary purpose of Regulations, which were introduced in 2010, was to prevent employers and employment agencies from using a list compiled by a third party to “weed out” union activists when recruiting. But Court of Appeal has now confirmed that the Regulations also apply to employers using their own list of workers who have taken part in industrial action to penalise them in some way short of dismissing them – for example by withdrawing discretionary benefits.

Ryanair disputed that the Regulations applied to workers who were on a list merely because they had taken part in industrial action. The relevant phrase refers to workers who have taken part in “the activities of trade unions”. It argued that this phrase should be interpreted in the same way as similar wording in the Trade Union and Labour Relations Act 1992.

The 1992 Act wording was considered last year by the Supreme Court (see our post on Trade union law ruled incompatible with Human Rights Convention). It confirmed that protection against detriment for participating in trade union activities in that Act could not be read as extending to taking industrial action of any kind.

In this latest ruling, the Court of Appeal has said that it cannot be inferred from the Supreme Court’s decision that the same interpretation should be applied to the Blacklisting Regulations. It gave several reasons for this conclusion, not least the fact that the wording in the two pieces of legislation is not exactly the same. However, for going on strike to count as participating in trade union activities, the industrial action must be official – ie called or endorsed by a trade union.

It is relatively rare for employers to single out striking workers for detrimental treatment short of dismissal. But it is not unknown, as these recent cases demonstrate. This latest ruling from the Court of Appeal reveals that it will be difficult for employers to do this without breaching the Regulations. It is worth adding that withholding pay from workers to reflect the time they are out on strike is not regarded as a detriment for these purposes, provided that the calculation reflects the employer’s contractual obligations.

The Employment Rights Bill 2024, currently before Parliament, includes measures to extend the scope of the Blacklisting Regulations, which the Government believes now need modernising to reflect the digital revolution. It will also amend the 1992 Act by creating a new right not to be subjected to a detriment short of dismissal for taking part in protected industrial action – ie action where the union has complied with the balloting and notification requirements in the 1992 Act. You can read more about these and other trade union related measures in the Bill here.

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