Government consults on new protection for workers taking industrial action

The Government has launched a consultation on new protections for workers who take part in lawful industrial action. The proposal follows the Supreme Court’s decision in Secretary of State for Business and Trade v Mercer, which highlighted a gap in existing legislation concerning trade union rights.

The case focussed on section 146 of the Trade Union and Labour Relations (Consultation) Act 1992. This provision protects workers from being subjected to detriment because they are members of a trade union. However, the Supreme Court held that the wording of the section does not extend to detriment, falling short of dismissal, imposed specifically because a worker participates in industrial action.

The claimant, supported by Unison, claimed that this gap in protection for workers taking part in industrial action was incompatible with the right to freedom of assembly and the right of workers to form and join trade unions in the European Convention on Human Rights.

The Supreme Court decided that this incompatibility was a matter for Parliament to resolve through legislation.

Industrial action is often used by workers and trade unions to seek improvements in workplace conditions. It can include strikes or other organised actions where workers stop work together to push for changes. Even though industrial action is closely linked to trade union activity, the Supreme Court found that the wording of section 146 does not protect workers if an employer treats them unfairly specifically because they take part in industrial action.

In response, section 76 of the new Employment Rights Act 2025 introduces such protection for workers. Under this provision, employers will be prevented from subjecting workers to detriment where the purpose is to punish, discourage, or prevent them from taking part in lawful industrial action. The Act also gives the government the power to introduce further regulations setting out which types of detriment will be prohibited.

The Government is now consulting on how these regulations should operate. One of the key questions is whether:

1. All forms of detriment linked to industrial action should be prohibited (the Government’s preferred option), or
2. There should be a prescribed list of prohibited detriments.

The examples of potential detriments in the consultation include:

• Being rejected for promotion or suffering demotion
• Disciplinary action such as being suspended
• Being excluded from opportunities to train
• Being offered fewer or no shifts or overtime shifts
• Failure to provide a reference.

Employers will be concerned that if all forms of detriment are banned (option A above), any worker that is aggrieved by any action taken by the employer around the time of industrial action may try to claim that this was done to punish them for, or deter them from, taking part in industrial action.

Feedback is being sought from employers, workers, trade unions and legal professionals.

For the avoidance of doubt, and to give some reassurance to employers:

• There will be no change to the existing position that there is no obligation to pay workers while they are on strike
• The protection from detriment will only apply to workers taking part in lawful industrial action. In summary, to be lawful the industrial action must have the support of a properly organised ballot of union members and the union has complied with notification requirements.

The consultation also considers how claims under section 76 should be treated by employment tribunals. The Government has proposed that compensation for these claims may be increased by up to 25% where an employer fails to follow the guidelines set out in the Acas Code of Practice on Disciplinary and Grievance Procedures. This would align the new protection with existing claims that can be brought for detriment suffered for trade union membership or activity.

The consultation will remain open until 23 April 2026.  Its outcome will help shape how the new protections operate and impact upon how employers can manage their workforce during industrial action.

The Government intends to bring the changes into force in October 2026.