Government Prohibits Detriments for Workers Taking Industrial Action

Protections for workers taking industrial action have been strengthened thanks to new legislation brought in by the Government. Before the secondary legislation, (brought about through the Employment Rights Act 2025) was introduced, unionised workers could be subject to any detriment from their employer, apart from unfair dismissal, if they exercised their right to strike.

The new legislation, which came into effect on 30th October 2026, bans employers from causing detriment to their workers over their decision to take industrial action. The Government said it had taken this measure as industrial relations should be conducted with “integrity, fairness and mutual respect”.

How a court judgment highlighted a lack of protection for workers on strike

In a legal case in 2024 the Supreme Court found that the protection afforded to a worker by Section 146 of the Trade Union Labour Relations Consolidation Act 1992 (TULRCA), did not extend to detriments for taking industrial action.

This part of TULCRA states that a worker “has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—

“(a) Preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

“(b) Preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so.”

A subsection says that an “appropriate time” means a time outside the workers’ working hours, or a time within their working hours, agreed upon with their employer.

The court had considered whether a worker, who had been suspended as a penalty for taking part in a lawful strike, would be protected by Section 146.

As the worker had abandoned their shift to go on strike they were not protected by TULCRA as it was viewed that this was not an “appropriate time” to carry out union activities.

The court rejected the argument that universal protection from all detriments is required by Article 11 of the Human Rights Act.

To address this incongruency, Section 76 of the Employment Rights Act 2025 was created.

The Act inserts section 236A into TULRCA, which states that: “A worker has the right not to be subject as an individual to detriment of a prescribed description by an act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes places for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.”

What will the new regulations mean for striking workers?

Copy: Under the new regulations, workers will be protected from employers trying to cause them detriment when they go out and strike lawfully.

Examples of detriment are:

• Demotion or reductions on pay or grade, apart from lawful pay deductions from striking
• Dismissal and disciplinary action
• Denial of opportunities including training or promotion
• Bullying, harassment or victimisation
• Unfavourable changes to working arrangements including shift changes, duties etc

The Government decided to ban all detriments, instead of creating a list of ones that would be prohibited, as a list would easily become outdated and may be more difficult to implement.

Banning all detriments creates “more legal certainty”, according to the Government, as “this approach is consistent with other areas of employment law that also prohibit all detriments, in particular section 146 TULRCA (detriment on grounds related to union membership or activities)”.

The withholding of pay during a legal strike will not count as a “detriment”, as is the case already in common law.

The prohibition only applies to detriments imposed for the purpose of penalising or preventing lawful striking and does not relate to circumstances that have arisen out of normal business proceedings.