The Employment Rights Act has introduced a prohibition on subjecting workers to “detriment of a prescribed description” for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or of penalising the worker for doing so.

This new prohibition can be found at section 236A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). It follows the Supreme Court’s decision in 2024 that the existing legal framework violated Article 11 of the European Convention on Human Rights (see our article here).

The current consultation is intended to determine what detriments should be prohibited.

What is not changing?

• No obligation to pay workers while they are on strike. It is long-established that when a worker goes on strike and does not turn up for work as a result, the worker is not entitled to be paid for their time spent on strike.
• Detriments to unions (rather than individuals) are permissible. Section 236A prohibits subjecting a worker “as an individual” to a detriment. Caselaw has established that sanctions which are detrimental to a union, but not directly detrimental to a worker, are not prohibited. Examples of such detriments would be derecognition of the union or refusing to negotiate with the union. Even though these actions may have a knock-on effect on workers, they are first and foremost targeted at the union.

Employers will only be prohibited from subjecting a worker to a detriment where the “sole or main purpose” of this is to prevent, deter or penalise industrial action. This means that they will still be entitled to impose a disciplinary sanction on a striking worker for misconduct that takes place during a strike.

What does the consultation propose?

The consultation presents two options for determining which detriments will be prohibited. There is also a separate proposal relating to the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Option A: Prohibit all detriments (preferred approach)

Under Option A, all forms of detriment would be prohibited. This would leave the question of what qualifies as a ‘detriment’ to be determined by existing caselaw and the views of courts and tribunals going forward.

This is the simplest option. It would align with the existing protections in section 146 of TULRCA and would ensure consistency between public and private sector employers. The government acknowledges that this option could affect the ability of employers to manage industrial action, but does not anticipate that to be determinative given that it sees unions being able to disrupt employers by taking industrial action as important.

Option B: Create a list of prohibited detriments

Option B would involve a list of detriments, set out in secondary legislation, which employers would be prohibited from imposing. This could be a list of specific detriments or of types of detriments.

It is unclear how Option B would look in practice, as the consultation does not provide a sample list. The government is clearly reluctant to adopt this option, in the interests of legal consistency and future-proofing legislation, even though it would provide more flexibility for many employers in managing industrial action.

What’s happening with the Code of Practice?

Certain kinds of claim (listed in Schedule A2 of TULRCA) empower Tribunals to increase or reduce any compensatory award by up to 25% if either of the parties has failed to comply with the Code of Practice on Disciplinary and Grievance Procedures.

The government intends to include claims under the new section 236A in Schedule A2 and thus empower Tribunals to consider this Code of Practice in making a compensatory award for a breach of the new provisions. This would align section 236A with the existing protections against detriment under section 146.

Practical impact

• Minimal impact for most employers. As the government itself notes in the accompanying options assessment document, most employers do not usually impose detriments for engaging in industrial action, especially as the creation of lists of those workers who have taken part in industrial action also raises potential blacklisting issues. However, that does not mean that it has not recently been used as a tactic by some employers, as is clear from the Ryanair case about which we wrote here. 
  
  The new provision is therefore primarily framed as a “preventative” measure and as necessary to comply with the UK’s international legal obligations, but in practice not much will change for most employers. For those rare employers who do engage in this practice, this will be significantly riskier once the law changes, especially as the government favours the broader Option A, which would leave the definition of ‘detriment’ in the hands of the courts.
• Employers should take care in disciplining workers involved in industrial action. This is already a thorny area with plenty of pitfalls for unwary employers. The protection against detriment relating to industrial action will make it even more difficult to discipline workers in this context, and compliance with the ACAS Code of Practice is recommended to minimise risk and avoid increased compensatory awards.
• Alignment with other new union protections. Section 236A is another component of the government’s attempt to empower unions to win recognition, increase recruitment, and call or threaten industrial action more often. As we have discussed previously, unions’ new powers and protections are only one side of the coin, and much will hang on how attractive union membership will be in today’s working world.

Next steps

If you have views on the proposed approach to detriments for industrial action, the consultation offers an opportunity to shape the final regulations. If you are a client or contact, please do get in touch with us and let us have your views.

The consultation closes on 23 April 2026 and the changes are expected to come into force in October 2026.