Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the Court of Appeal Judgment in the case of Moraes and Ryanair, in which the court was asked to consider whether the protection provided by the blacklisting regulations extends to lists of striking workers. The blacklisting regulations make it unlawful to compile, disseminate and use a blacklist. A blacklist for these purposes is defined as a list containing details of persons who are or have been members of trade unions, or persons who are taking part or have taken part in the activities of trade unions, where the purpose of the list is to discriminate against those on it. In this case, a dispute arose after airline pilots participated in strike action called by their recognised trade union. Prior to the strike, the airline sought an injunction complaining about the union's compliance with strike balloting and notification requirements but the High Court rejected its application and held that the union was likely to succeed at trial in proving this was protected industrial action. The airline later withdrew concessionary travel benefits for 12 months from the pilots who had participated in the strike. The pilots brought claims arguing that the withdrawal of their travel benefits constituted both an unlawful detriment for taking part in the activities of a trade union under the Trade Union and Labour Relations Consolidation Act. and a detriment in relation to a prohibited blacklist under the blacklisting regulations on the basis that the airline had created a prohibited list of pilots who took part in the strike in order to penalise them by withdrawing their discretionary benefits. The Employment Tribunal upheld the pilots' claims and this decision was later upheld by the Employment Appeal Tribunal. The airline then appealed to the Court of Appeal. Before this case was heard in the Court of Appeal, the Supreme Court ruled in a different case Secretary of State for Business and Trade and Mercer, that a union's activities for the purposes of the protection from unlawful detriment under the trade union and Labour Relations Consolidation Act exclude participation in industrial action, and the pilots withdrew this aspect of their claim as a result. Therefore, the key remaining question before the Court of Appeal was whether the striking workers were entitled to protection against detriment under the blacklisting regulations. The Court of Appeal dismissed the Airlines Appeal and held that organising or taking part in official industrial action, such as a strike, constitutes activities of a trade union under the blacklisting regulations. This was the natural meaning of the words in the regulations and the Supreme Court decision in Mercer, which related to the interpretation of different legislation, did not alter that natural meaning. The industrial action must be official, that is organised or endorsed by the union under its rules, to qualify. but there is no requirement for it to meet all of the statutory requirements under the Trade Union and Labour Relations Consolidation Act. It is unlawful under the blacklisting regulations for an employer to compile, disseminate and use a list of its workers who took part in official industrial action for the purposes of discriminating against them and subjecting them to detriment. The upcoming Employment Rights Bill contains provisions designed to ensure workers have protection from detriment for participating in lawful strike action. Meanwhile, this decision provides workers with a possible route to bypass the Supreme Court's decision in Mercer, making it clear that employers cannot create a list of those who have taken part in a strike or other official industrial action for the purposes of discriminating against them or retaliating by subjecting them to a detriment. Look out for further episodes in this series to stay up to date on all things HR and employment law related.