The government has announced that any ‘detriment’ suffered by striking workers will be prohibited under reforms in the Employment Rights Act 2025, rather than ministers creating a prescribed list of prohibited disadvantages.

The Department for Business and Trade has now published its response to the consultation it launched in February, and has chosen its preferred option of prohibiting all detriments that workers may face when they go on strike or take other forms of industrial action.

Of the 72 total responses, 57% agreed with this option, primarily respondents who were employees and trade unions. One-third (33%) of employers also agreed, but 82% of trade bodies disagreed.

It means that any detriment that a worker can be subjected to for “the sole or main purpose of penalising, preventing or deterring them from taking industrial action” will be prohibited from October 2026. The change applies to England, Scotland and Wales.

Ministers had also sought views on whether to create a list of prohibited detriments, and what such a list would include.

The government said it is committed to ensuring workers get full protection against detriment when they take industrial action, so they can exercise their right to take industrial action without fear of repercussions.

“We believe that full protection against detriment will enable trust and stronger relations to be built between employers and workers,” said ministers.

“Responses to this consultation have shown that, of the two options, respondents feel that prohibiting all detriments and removing fear of any unfair or punitive measure is the most effective way to offer protection and build trust.”

It noted respondents’ fears that protections could be undermined if a list of prohibited detriments were created, as it would “allow bad-faith employers to exploit” detriments not prohibited by the list, adding that they might become outdated as working environments change.

Background to the law change

Section 146 of the Trade Union Labour Relations Consolidation Act 1992 (TULRCA) states that a worker has the right not to be subjected to any detriment by their employer for the purpose of penalising, preventing or deterring them from being a trade union member, taking part in trade union activities at an appropriate time, making use of trade union services, or compelling them to be a trade union member.

However, the Supreme Court found in Secretary of State for Business and Trade v Mercer in 2024 that TULRCA did not protect workers who take part in industrial action. It found this to be incompatible with Article 11 of the European Convention on Human Rights – the right to free assembly and association.

The court considered whether Ms Mercer, who was suspended for taking part in a lawful strike, was protected under section 146, focusing on the definition of “at an appropriate time”.

Because she had abandoned her shift to participate in the strike, the court found this was not “at an appropriate time”, and so section 146 did not provide protection from detriment.

The Employment Rights Act 2025 fixes this incompatibility by inserting a new section 236A into TULRCA, which states: “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 place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.”

Case law defines “detriment” broadly to mean any disadvantage, which can be as a result of an employer’s actions or inactions. Deductions from pay when someone strikes are not seen as a detriment, and the government did not propose to change this.

Whether or not an employer’s action or inaction takes place for “the sole and main purpose” of deterring or preventing industrial action, or penalising an employee for taking part, will be decided by the employment tribunal.

 

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