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

This consultation forms part of the Government’s commitment to update legislation on workers’ protection regarding their participation in official industrial action. The consultation period ends on 23 April 2026.

Current legislation already provides protection in relation to trade union membership and activities. This includes, for example, 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, in 2024, the Supreme Court held in Secretary of State for Business and Trade v Mercer that protection did not extend to detriments for participating in lawful industrial action. This was incompatible with Article 11 of the European Convention on Human Rights, the right to free assembly and association.

The Employment Rights Act 2025 deals with that incompatibility. It enhances protections for workers taking official industrial action by prohibiting detriments that employers might enact to penalise, prevent or deter them from taking such action. The Act enables the Government to set out in Regulations what constitutes prohibited detriments and the purpose of the consultation is to obtain views on two options:

• Option A – Prohibit all detriments for taking industrial action

One perceived advantage of this approach is that it provides the “fullest protection for workers” taking industrial action. Other advantages include alignment with existing detriments legislation and guarding against bad behaviour. Interestingly, another perceived advantage is the infrequent use of detriments. This means that if the prohibition on all detriments option is chosen, (rather than a prohibited list) the Government expects there to be limited change in how employers have been behaving so far and a minimal economic impact. A perceived disadvantage of this option is the effect on employers’ ability to manage industrial action.

• Option B – Create a list of prohibited detriments

The alternative option is to create a list of detriments. One perceived advantage is that it gives employers more flexibility and discretion in managing industrial action. For instance, “the most egregious detriments” could be prohibited but not those that may have less impact on a worker. The disadvantage of this option is the challenge of devising the list especially because workplace environments evolve. Also, there is concern that some employers may act in bad faith and could abuse the un-prohibited detriments or devise detriments not covered by the list.

Option A is the Government’s Lead Option.

Finally, the consultation paper seeks views on whether the 25% uplift or reduction in compensation for breach of the Acas Code of Practice on Disciplinary and Grievance Procedures should apply where a claim has been brought in relation to detriment for taking industrial action. The Government’s view is that it should.

The Government acknowledges that “all interested parties will want clarity on the law in this area as soon as possible” and it is expected that the measures will take effect in October 2026.

Useful links:

• Detriments for taking industrial action
• Options Assessment
• Blake Morgan’s Employment Rights Act 2025 Hub