Blacklisting Regulations: a broader scope

Many employers may have historically interpreted the legislation on blacklisting narrowly, associating blacklisting primarily with hiring practices. However, the Court of Appeal (CA) has clarified in a recent case that these protections extend to broader employment conditions, including penalisation for union-endorsed industrial action. The Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklisting Regulations) prohibit the creation or use of lists to discriminate against individuals based on their involvement in trade union activities. The Blacklisting Regulations explicitly outlaw lists containing details of individuals taking part in trade union activities if these lists are used to discriminate in recruitment or workplace treatment.

Background

A group of pilots, represented by the British Airline Pilots' Association (BALPA), voted to go on strike. BALPA filed a trade dispute with an airline about pay and employment terms. A ballot showed 72% turnout with 353 votes in favour of industrial action, but it did not meet the 80% threshold needed for a legal strike.

The airline applied for an interim injunction, claiming that BALPA had not followed the legal steps required by the relevant legislation. The High Court refused the injunction and rejected the airline's argument, ordering it to pay BALPA's legal fees. The airline then dropped its claim and agreed to cover these costs. It announced that pilots would lose their concessionary travel benefits if they took part in the strike.

The pilots subsequently brought claims in the employment tribunal, arguing that this withdrawal of benefits was an unlawful detriment for taking part in trade union activities. They also argued that by identifying which pilots had gone on strike, the airline had created a "prohibited list" of BALPA members, which was against the Blacklisting Regulations.

Industrial action as a trade union activity

The case reached the CA, which ruled in favour of the pilots, emphasising that:

• official industrial action, organised or endorsed by a union, qualifies as a trade union activity under the Blacklisting Regulations; and
• recording the names of employees who joined the strike constituted blacklisting under the Blacklisting Regulations.

The CA rejected the airline's argument that employers can blacklist staff for participating in strike action.

This marks a divergence from the interpretation of similar but not identical wording under the main piece of legislation governing trade union rights and industrial action (the Trade Unions and Labour Relations (Consolidation) Act 1992 or TULRCA). The Supreme Court held last year that, for the purposes of TULRCA, the phrase "activities of an independent trade union" did not include industrial action, although it made a declaration that this was incompatible with the European Convention on Human Rights (you can read more in our blog). The CA looked at the consultation response and guidance published by the government at the time the Blacklisting Regulations were made and concluded that the government intended the wording in the Blacklisting Regulations to be given its ordinary meaning, otherwise the Blacklisting Regulations would not have achieved the government's stated aims.

Practical implications for employers

This judgment significantly expands the understanding of blacklisting protections:

• Beyond recruitment: Employers must be aware that blacklisting covers not only hiring decisions but also any detrimental treatment of workers, including the withdrawal of benefits or other workplace sanctions.
• Official industrial action: Less favourable treatment of workers involved in any union-endorsed industrial action may expose employers to liability under the Blacklisting Regulations.

Why this matters

The case highlights the important role of the Blacklisting Regulations in safeguarding workers' rights to engage in union activities without fear of retaliation. Employers should:

• audit internal policies: review practices related to employee record-keeping, disciplinary actions and benefits policies to ensure they are not inadvertently creating a blacklist;
• avoid retaliation: refrain from using participation in union-endorsed activities, including strikes, as a criterion for detrimental treatment; and
• train management: educate leadership teams on the extended interpretation of "trade union activities" to mitigate potential risks of legal challenges.

What does the future hold?

In the Employment Rights Bill (the Bill), the government plans to extend blacklisting prohibitions to cover lists created through predictive technology, such as AI, even if initially compiled without discriminatory intent but later used for such purposes. The Bill would also cover lists created by third parties who do not have direct employment relationships with affected individuals and remove language limiting the restriction to employers or agencies, broadening protection to encompass third-party organisations who may compile or use blacklists.

You can read more on the government's plans for reforming the UK's industrial relations framework, including addressing the Supreme Court judgment mentioned above, in our previous insights (available here and here).