Court of Appeal confirms UK’s Blacklist Regulations protect striking workers

The Court of Appeal has handed down an important ruling which has implications for employers dealing with strike action. The message is that tracking who goes on strike, and using the information to impose penalties, risks breaching the blacklisting rules, so care is needed. We’ll speak to an industrial relations expert about managing that risk.

This is the case of Morais v Ryanair which concerned Ryanair pilots who took part in lawful industrial action and subsequently had their discretionary staff travel benefits removed. The question before the court was whether Ryanair’s actions amounted to blacklisting under UK law.

Under the Blacklisting Regulations, employers are prohibited from keeping lists of trade union members if the purpose is to discriminate against them. The union argued that Ryanair could only have known which pilots to penalise if it had kept a list and, ultimately, the court agreed. 

A key question in this case was what constitutes a list under the Blacklisting Regulations. The Court of Appeal has said that a list doesn’t have to be a physical document - it can exist in any form, including in HR records whether they be formal or informal. It means that employers must be extremely careful about how they document strike participation and, crucially, how they use that information. So whilst employers may have a perfectly legitimate need to track who has taken part in strike action - to ensure that pay is deducted correctly for example - if it’s then used to subject employees to any form of detriment, such as removing benefits or altering future opportunities, it could fall foul of the regulations.

So, let’s get a view on this. Jon Coley is an expert in this field and earlier he joined me by video link from the Birmingham office. I asked for his take on the case:

Jon Coley: “Well, it's an important one for clients to be aware of, Joe. It’s important in the context of what action you take against employees who may have taken strike action. In this case in particular, it was bought by BALPA on behalf of Ryanair pilots, Ryanair pilots who had gone on strike. In their contracts employment they had discretionary travel benefits - there was no doubt that they were discretionary - and what happened is Ryanair said that if you go on strike we will remove those benefits from those of you who go on strike. Now, the case is brought on two fronts, one of which Mercer is talked about at length, but the important point for employers to be aware of is the claim that was advanced under the Blacklisting Regulations. Now the Blacklisting Regulations prohibit employers from keeping a list of trade union members if the purpose of that list is to discriminate against those members and the union in this case argued that the pilots who had been subjected to the removal of travel benefits, the employer could only have known about the pilots who went on strike if they kept a list and therefore they argued that Ryanair had fallen foul of the Blacklisting Regulations and they were successful in that respect, Joe, in the sense that Ryanair had kept a list, they had done so to remove those travel benefits, and they had done that in order to, effectively, under the list, therefore, discriminate against those who were taking strike action, taking part in trade union activities.”

Joe Glavina: “I just want to ask you about what counts as a list because viewers may well be wondering, following this case, how they can go about keeping a record of who is taking part in the strike action in a way that avoids breaching the blacklisting rules? How do they do it safely?” 

Jon Coley: “It's a really interesting question, Joe, and a really challenging one because a list doesn't necessarily, arguably, have to even be written down - the list could be in somebody's head - but employers, of necessity, are going to have to keep a list in order, rightly, not to pay employees who go on strike. That will have to be kept on the HR systems, or some flag applied, but I think that the trick and the important thing is to be very careful then what you may use that list which you've created for pay purposes for, apart from that.”

Joe Glavina: “Just coming onto the communications piece, Jon. How should employers frame messaging around strikes to avoid claims?

Jon Coley: “Well, I always think, Joe, that it's really important to state it’s about hearts and minds when you’ve got to this point in a dispute with your employees and you don't want the only line of communication, the only channel of communication, to be that of the trade union. You want to make your point; you want the employees to understand why you are in dispute with the trade union and the company's point of view direct from the company without the union being the middleman and interpreting that message. So, I think it's really important that what employers don't run scared of, or aren't afraid of, is continuing the communication with their colleagues, their staff, their employees, to make sure that they understand the company's point of view.”

Joe Glavina: “Final question, Jon, which is around contingency planning. I know we do a lot of work with clients in this area. What's the latest advice on around this?”

Jon Coley: “Well, I think as a result of this case, Joe, you should probably just have a look at your contingency plans and if there are any suggestions anywhere that you are subjecting employees to detriment as a result of having taken a strike action other than a simple reduction in the daily rate of pay, then you should be looking to seek legal advice on that before taking that action any further.”

That case is called Morais v Ryanair and is a decision of the Court of Appeal. We’ve included a link to the judgment in the transcript of this programme for you.

LINKS
- Link to judgment: Morais v Ryanair DAC