Employment Rights Act 2025: consultation launched on protection from detriments for taking industrial action

Currently the law provides various protections in relation to trade union membership and activities, including a prohibition on employers from imposing detriments on workers to penalise, prevent, or deter them from being a trade union member or taking part in trade union activities. However, a recent Supreme Court case, Secretary of State for Business and Trade v Mercer highlighted that the protection did not extend to detriments for taking industrial action. The Mercer judgment set out that the British legislation was incompatible with Article 11 of the European Convention on Human Rights (the right to free assembly and association). 

Employees already have rights against dismissal for taking part in industrial action. The Employment Rights Act 2025 provides new protection for workers against detriments imposed by their employer to penalise, prevent, or deter them from taking official industrial action. The details of the prohibited detriments will be set out in regulations.

Detriment broadly means a disadvantage, and could include not being given training opportunities or not being promoted. The government is seeking views on whether to prohibit all detriments for taking industrial action (this is the government’s lead option) or create a list of prohibited detriments.

For certain claims, the government can increase any tribunal award by up to 25% where an employer has followed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (or reduce the award by up to 25% where the employee has failed to comply). The government is seeking views on its proposal to apply the 25% uplift or reduction to claims in relation to detriment for taking industrial action.

 The consultation closes on 23 April 2026.

Measures extending protections against detriments for taking industrial action are anticipated to come into effect in October 2026.