Employment Rights Act 2025: TU Detriment & Dismissal

By Jo Seery Professional Support Lawyer &

Frankie Grant Assistant Lawyer, Trade Union Law Group

Introduction 

In this week’s feature article on the Employment Rights Act 2025 (ERA 2025) we focus on all you need to know on how the protections for workers taking part in industrial action are improved by the ERA 2025.  

Dismissal for taking part in Industrial Action  

The current position in broad terms is that an employee has a right to bring an automatically unfair dismissal claim where the principal reason for their dismissal was for taking part in protected industrial action during the relevant period. Protected industrial action means where the Union has complied with all the ballot and notice provisions see Employment Rights Bill Article: IA & MSL’s. The relevant period is usually the first 12 weeks of the industrial action although there are some exceptions. Where an employee is automatically unfairly dismissed for taking part in protected industrial action, an employment tribunal does not have to consider whether the employer acted reasonably in treating that reason as sufficient to justify dismissal. There is also no length of service requirement for bringing an unfair dismissal claim of this nature, i.e. these claims are already a day-one right.   

However, if there is no ballot or the ballot and/or notices were defective or the 12 week protected period has expired and an employee is dismissed in those circumstances, the employee cannot claim that the dismissal was automatically unfair. In that case the employee may claim that the dismissal was ordinarily unfair.  In that case the general test as for all unfair dismissal claims applies. 

The Employment Rights Act removes the relevant period i.e. the first 12 weeks of industrial action. In other words, employees will be protected from unfair dismissal during any lawful industrial action that occurs within the lifetime of the mandate of the ballot for industrial action.  

However, it will still need to be made out that the reason for the dismissal was for taking part in protected industrial action. This means that an employer is not prevented from dismissing employees fairly for a reason unrelated to industrial action during the period of the industrial action.  

Similarly, the right is dependent on the ballot and notice requirements being met  

Detriment for taking part in Industrial Action  

The current position is that the law prohibits employers from subjecting workers to a detriment (short of dismissal) such as a disciplinary warning for taking part in Trade Union activities under s. 146 of the Trade Union and Labour Relations Act 1996. However, there is no protection for workers who suffer a detriment by their employer for taking part in industrial action.   

In April 2024, The Supreme Court unanimously held in the case of ‘Secretary of State for Business and Trade v Mercer’ that subjecting a worker to a detriment for exercising the right to take part in industrial action. is incompatible with the right to freedom of association in Article 11 of the European Convention on Human Rights because it gives no protection against sanctions, short of dismissal, imposed on trade union members who participate in lawful strikes. 

In that case Mrs Mercer, an employee and workplace representative was suspended for taking part in lawful strike action.  

However, while the Supreme Court considered that the the current law both encourages and legitimises unfair and unreasonable conduct by employers, it decided that it was not possible to interpret the domestic legislation compatibly with Article 11.  Instead, a declaration of incompatibility was issued under s.4 of the Human Rights Act 1998. 

The Employment Rights Act addresses the Supreme Court declaration in Mercer by introducing statutory protection for workers not to suffer a detriment (short of dismissal), where the sole or main purpose of the employer is preventing or deterring the worker from taking part in industrial action or penalising the worker.  This is set out in news. 236A(1) of TULRCA 

Looking forward  

The extension of the right to claim automatic unfair dismissal protections for taking part in industrial action is due to come into force on 18 February 2025.  

In relation to the right not to suffer a detriment for taking industrial action the ERA 2025 provides for further regulations.  Pending consultation on any regulations the right is due to take effect in October 2026.  

Overall, the extended protection from dismissal and being subject to a detriment for taking part in industrial action is welcome, if not, long overdue.