The Employment Appeal Tribunal (EAT) has confirmed in Ryanair DAC v Morais and ors that taking lawful industrial action constitutes a trade union activity which is protected by the trade union detriment provisions in the Trade Union and Labour Relations (Consolidation) Act and the Blacklisting Regulations. As a result, the pilots in this case had the right not to be subjected to a detriment for taking part in strike action or for a reason relating to a blacklist.
A number of Ryanair pilots, all members of the British Airline Pilots’ Association (BALPA), took part in a strike called by the union in September 2019. Having warned the pilots that they risked losing concessionary travel benefits for 12 months if they went ahead with the strike, the company made good on its threat and withdrew the benefits.
The pilots lodged tribunal claims arguing that the company was in breach of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 TULRCA), and that they had been blacklisted contrary to regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (ERAR).
For its part, Ryanair argued that taking part in strike action did not amount to ‘trade union activities at an appropriate time’ for the purpose of section 146. It also argued that, as the strike took place in Dublin, not Great Britain, it did not fall within the scope of ERAR, and/or that the regulations did not apply to this case because the list of pilots that Ryanair had drawn up was for its use only.
Section 146(1)(b) TULRCA gives workers the right not to be subjected to a detriment as a result of taking part in the activities of an independent trade union “at an appropriate time”.
Regulation 3 ERAR outlaws the use of “a prohibited list” which contains details of people who have taken part “in the activities of trade unions”.
Regulation 9 ERAR gives individuals the right to lodge a tribunal claim if their employer subjects them to a detriment for a reason which relates to a prohibited list.
The EAT upheld the tribunal’s decision that taking part in in a strike or other industrial action was included within the protection for taking part in trade union activities “at an appropriate time”.
The EAT relied on the decision in Mercer v Alternative Futures Group Ltd (weekly LELR 729) that, in order to comply with the Human Rights Act, the requirement that trade union activities take place “at an appropriate time” had to be “read down” so as to include the words “or at a time within working hours when [they were] taking part in industrial action”. As collective bargaining is one of the main reasons that workers join unions, it followed that the right to take part in industrial action when collective bargaining breaks down was an intrinsic part of it.
With regard to the regulation 9 claim, the EAT held that it was irrelevant that Ryanair is based in the Republic of Ireland and that some “implementing steps” were taken there as it operates in Great Britain and the claimants are all based in Great Britain.
Nor was it relevant that the list used to implement the travel ban was compiled in Dublin as regulation 9 simply requires that there has been a contravention of regulation 3. In any event, regulation 2(2) makes clear that even if a list is supplied “offshore”, that does not avoid the contravention.
In respect of both claims, the protections applied whether the industrial action had the statutory protection of a ballot or not. In any event it was not open to the company to reconsider the issue as to whether the balloting requirements had been satisfied.
This case, and the EAT’s decision in the Mercer case, establish the fundamental principle that, using the interpretative obligation under the Human Rights Act, protection from trade union victimisation includes protection from victimisation for taking part in strike action. This case further confirms that the protection applies where the employer intends to use a blacklist to discriminate against workers for taking part in industrial action.
This is a welcome trend of the Human Rights Act being used successfully to bolster fundamental trade union rights (see also Kostal v Dunkley and ors in weekly LELR 746).