What protections are currently in place?
At present, employees may have a claim for unfair dismissal where they are dismissed because they took protected industrial action. However, to qualify, the dismissal usually needs to have been within 12 weeks of the beginning of that industrial action.
This protection does not normally extend to employees who have been dismissed more than 12 weeks after industrial action began, even if the reason for dismissal was that they took that protected industrial action.
What’s the issue?
As is apparent, the extent to which employees are protected from dismissal as a punitive measure for industrial action is limited by the 12 week requirement.
In addition, there is no protection for employees where their employer seeks to penalise or deter them from taking action by subjecting them to some detriment falling short of dismissal.
This particular issue was considered by the Supreme Court in the case of Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) [2024] UKSC 12 where it was declared that existing law was incompatible with the right to freedom of assembly and association (article 11 of the European Convention on Human Rights).
The effect of both the limited time frames surrounding dismissal and the lack of protections in relation to detriments falling short of dismissal are such that employees may feel less empowered to exercise their right to take industrial action, for fear of repercussions.
What has and will change?
Regulation 3 bought the provisions into force on 18 February 2026. Section 76 provides protection for employees against detriment, the main purpose of which is to deter them from taking protected industrial action or penalise them for doing so. However, Section 77 strengthen the protection for employees against being dismissed for taking protected industrial action.
In October 2026: Section 76 above will give rise to no enforceable rights until further regulations are made setting out a “prescribed description” of the detriments that will be unlawful under it. The government intends to consult on these regulations and, according to the roadmap, bring them into effect in October 2026.
The right for employees not to be subjected to a detriment ‘for the sole or main purpose’ of ‘preventing’, ‘deterring’, or ‘penalising’ a worker taking protected industrial action is expected to come into force.
What does this mean?
The changes significantly increase the protections afforded to employees taking, or thinking of taking, industrial action. These changes give employees greater confidence in their ability to do so without facing negative repercussions from their employers.
The increased protection for employees creates an increased risk of litigation, even where an employer has taken legitimate disciplinary action against employees who have previously taken part in strikes.
To manage this risk, it will be important for employers to ensure that those with managerial responsibilities are fully informed of the upcoming changes and that robust policies/processes are in place to guide those making disciplinary decisions.
If you would like to speak to anyone about the content of this blog please contact a member of the Employment team.
To find out what other aspects of employment law are affected by the Employment Rights Act, read our blog “The Employment Rights Act – When to expect change”.
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