Housing associations often have unionised staff, including maintenance teams, administrative staff, or frontline housing officers. Strikes, walkouts, or work-to-rule actions aren't uncommon, especially during restructuring, funding cuts, or disputes over pay and conditions and could easily be caught by this case. 

While this Court of Appeal case centres on Ryanair and its pilots, the legal principles have broad implications for all employers that recognise unions.

The principal

In the case of Morais and others v Ryanair DAC and another, the Court of Appeal ruled that the Employment Relations Act 1999 (Blacklists) Regulations 2010, which makes it unlawful to create or use a list of people involved in trade union activities to discriminate against them, extends to protecting workers from being blacklisted for participating in official industrial action - i.e., strikes organised or endorsed by a recognised trade union. 

This protection applies even if the strike doesn’t meet the legal rules for immunity under Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). For example, if the strike action is illegal because it has not met the balloting or notice requirements.

What happened?

• Ryanair pilots went on strike, organised by the British Airline Pilots' Association
• After the strike, Ryanair withdrew concessionary travel benefits from the pilots for a year
• The pilots brought employment tribunal claims, arguing that the withdrawal of benefits was:
  1. an unlawful detriment for taking part in the activities of a trade union (under Section 146 TULR(C)A ); and 
  2. amounted to blacklisting under Regulation 9 of the 2010 Regulations (which bans detriments received concerning a 'prohibited list').
• Ryanair’s defence: The strike wasn’t protected under S.219 TULR(C)A, so they weren’t in the wrong.
• The employment tribunal found that Ryanair produced an employee record identifying the individuals who had taken strike action but appeared to accept that participants in a strike would not be protected from blacklisting if it were shown that their trade union did not have the protection of s.219 TULR(C)A. Ryanair appealed the tribunal's decision.

The verdict

• The Employment Appeal Tribunal (EAT) and Court of Appeal both dismissed Ryanair’s appeals.
• The Court of Appeal clarified that the Blacklists Regulations protect participation in official industrial action, regardless of whether the union has S.219 immunity i.e. was protected as lawful strike action.
• Key distinction: S.146 TULR(C)A detriment claims do not cover participation in lawful strike action. This was decided by the Supreme Court in another case (Mercer) after the EAT decision and before the Court of Appeal decision in this case.     

Key takeaways for employers:

1. Strikes are considered to be a protected trade union activity - Participation in official industrial action is considered a trade union activity under the Blacklists Regulations.
2. No immunity loophole - Don’t assume you’re safe as the strike isn’t technically ‘protected’ under S.219  TULR(C)A. The Blacklists Regulations apply regardless.
3. Blacklisting risks - Compiling or using lists to identify employees who have been on strike, even indirectly, can amount to unlawful blacklisting, exposing employers to legal claims. 
   1. Review your internal records - are you inadvertently tracking union activity? 
   2. Train managers - Ensure they understand what counts as an unlawful detriment
   3. Focus on fairness - Decisions about promotions, benefits or discipline should be based on merit not influenced by union involvement.
4. Avoid retaliation - Withdrawing benefits, applying disciplinary actions, or any form of detriment post-strike can be challenged if it’s linked to union activity.
5. Policy check - Review internal policies to ensure compliance with trade union laws and avoid practices that could be seen as punitive towards union members.

This case is a wake-up call for all employers to handle union-related issues carefully, fairly and lawfully. Getting it wrong exposes employers to reputational risks, especially for housing associations accountable to communities and stakeholders. We would encourage employers to tread carefully when responding to industrial action to avoid costly legal pitfalls. 

For more information

For more assistance and advice on industrial action, please contact contact me.