UK: Consultation Launched on Protection From Detriments for Taking Industrial Action

Why It Matters

The changes close a gap highlighted by the 2024 Mercer ruling, strengthening workers’ Article 11 rights and increasing legal risk for employers who discipline strike participants. This will force companies to revise industrial‑relations strategies and could raise litigation costs.

Key Takeaways

• ERA 2025 adds protection against detriments for industrial action
• Government proposes two options: prohibit all or list specific detriments
• Consultation ends 23 April 2026; reforms effective Oct 2026
• Acas uplift may raise awards up to 25% for claims
• Employers must prove main purpose to avoid detriment liability

Pulse Analysis

The UK’s Employment Rights Act 2025 marks the most significant overhaul of industrial‑action law since the Trade Union Labour Relations (Consolidation) Act 1992. The reform was triggered by the Supreme Court’s 2024 Mercer judgment, which exposed a loophole: existing detriment protections did not extend to workers taking officially sanctioned strikes, contravening Article 11 of the European Convention on Human Rights. By codifying a “sole or main purpose” test, the ERA 2025 seeks to align UK law with international standards and give employees a clearer shield against retaliatory measures during collective bargaining disputes.

The government’s consultation presents two divergent pathways. Option 1, the lead proposal, would outlaw any detriment imposed for the primary aim of deterring or penalising strike participation, placing the evidential burden squarely on employers. This blanket approach promises legal certainty but could restrict legitimate managerial actions, such as addressing misconduct that coincides with industrial action. Option 2 favours a curated list of prohibited detriments, offering flexibility but risking ambiguity and inconsistent application across sectors. Stakeholders must weigh the trade‑off between comprehensive worker protection and operational latitude when submitting their responses.

Beyond the definition of prohibited detriments, the consultation extends the Acas uplift to industrial‑action claims, potentially boosting awards by up to 25 % where employers breach the Acas Code of Practice. This financial incentive amplifies the cost of non‑compliance and underscores the need for robust grievance procedures. Companies should audit existing disciplinary policies, document the genuine business reasons behind any action taken during a strike, and train managers on the new “sole or main purpose” test. Preparing now will mitigate litigation exposure when the reforms take effect in October 2026.