• Claimant: Benjamin Morais & Others

• Respondent/Appellant on Appeal: Ryanair DAC

Creating a prohibited list of employees based upon taking industrial action is not permitted until the Employment Relations Act 1999 (Blacklist) Regulations.  However, detriment short of dismissal was allowed within Section 146 of the 1992 Act following on from an earlier Supreme Court decision.

The claimants were airline pilots and members of BALPA, an independent trade union recognised by the employer for collective bargaining.  In 2019, the respondent withdrew concessionary travel benefits from the employees for 12 months as a result of a strike.   The claimants issued proceedings claiming that it was a detriment as a result of Trade Union activity within the confines of the Trade Union and Labour Relations (Consolidation) Act 1992. Additionally, the claimants claimed that in withdrawing the travel benefits from some employees it had compiled a record of BALPA members which had the effect of creating a ‘prohibited list’ contrary to Reg 3(2) of the Employment Relations Act 1999 (Blacklists) Regulations. 

At first instance, the Tribunal found in the claimant’s favour finding that there was detriment and that the employer had created a prohibited list contrary to the Regulations. The EAT upheld that claim. The respondent’s appealed to the Court of Appeal.  

It is important to note that in the interim period the Supreme Court ruled in Mercer v Alternative Future Group [2021] ruling that Section 146 of the 1992 Act gave no protection from detriment short of dismissal to workers engaged in industrial action.  It also declared that Section 146 was incompatible with Article 11 of the European Convention on Human Rights as there was insufficient protection for trade union members when taking part in lawful strike activity. As a result of that decision, the claimants and respondents agreed that the Section 146 claim could not succeed and it was dismissed by consent.

The respondent/appellant subsequently argued that the claim relating to blacklisting also had to fail.  This was on the basis that the Tribunal and EAT had erred in interpreting ‘activities of trade unions’ as participating in industrial action yet in Mercer held that the phrase did not include participation in industrial action. The Court of Appeal, following Mercer, found that organising industrial action constituted activities of an independent trade union. The Court took into account the guidance from the Government on the interpretation and that if the employer was right it would allow them to blacklist employees who took part in industrial action and would also mean that the Government was incorrect in its role-out of the legislation.  As a result, the appeal was dismissed on that matter. 

The Court of Appeal provides a useful interpretation of the meaning of ‘activities of an independent trade union’.  Whilst the Supreme Court noted that it did not include industrial action for the purpose of detriment short of dismissal – that was not the case with the separate legislation relating to blacklisting or creating a ‘prohibited list’. Accordingly, it is clear that creating a prohibited list is not permitted for those who take industrial action.    

https://www.judiciary.uk/judgments/benjamin-morais-and-others-v-ryanair-dac/

NB: This case is closely linked to the ‘Mercer’ series of cases that Jason has reviewed previously. The Reviews can be found here:

• Mercer v Alternative Future Group Ltd [2021]
• Mercer v Alternative Future Group Ltd [2022]
• Secretary of State for Business and Trade v Mercer [2024]