The Employment Rights Act 2025 (‘ERA 2025’) introduces new protections for workers against detriments by their employer to penalise, prevent or deter them from taking official industrial action. On 26 February 2026, the Government launched a consultation seeking input from stakeholders to inform regulations on what types of detriment should be prohibited.
Background
The ERA 2025 introduces new provisions to address gaps in existing legislation, highlighted by the Supreme Court’s 2024 judgment in Secretary of State for Business and Trade v Mercer (see our previous articles here and here). The Trade Union Labour Relations (Consolidation) Act 1992 (‘TULRCA’) currently protects workers from detriments related to trade union membership and taking part in trade union activities at an appropriate time. However, the Mercer case found that this did not extend protection to official industrial action, which the court declared as incompatible with Article 11 of the European Convention on Human Rights (the right to free assembly and association).
The Government has sought to address this, and so the ERA 2025 amends TULRCA, granting workers the right not to be subjected to “detriments of a prescribed description” by their employer for the “sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.” The Government explains that this means that actions or inactions by an employer that may be classed as a detriment, but which are not for the “sole or main purpose” of penalising, preventing or deterring a worker from taking industrial action would not be prohibited. An example given in the consultation is where an employer sanctions an employee to discipline behaviour that happened to occur during industrial action, but which amounted to misconduct (such as failing to comply with confidentiality obligations). However, the burden would be on the employer to show what their main purpose was in imposing the alleged detriment.
According to the Government’s recent timeline, this reform is due to come into force in October 2026.
Consultation Options
The Government has the power to define prohibited detriments through secondary legislation and is seeking views on two main options for how to define the types of “prescribed” detriments to be covered:
- Option 1 (the Government’s Lead Option): Prohibit All Detriments
This would protect workers against all detriments that they may be subject to for the sole or main purpose of penalising, preventing or deterring them from taking industrial action. The Government explains that this option would be the fullest protection for workers and would align with detriment protections that exist elsewhere in TULRCA. The burden would be on the employer to show what their sole or main purpose was in imposing the detriment.
The Government believes this option would ensure clarity and consistency across public and private sectors, as well as guarding against the risk that some employers may seek to overuse unprohibited detriments. However, they recognise that it may limit employers’ abilities to manage industrial action.
- Option 2: Create a List of Prohibited Detriments
This alternative would be to create a list of prohibited detriments. The Government’s Options Assessment considers three possibilities for constructing a list:
- Specifying a list of detriments, for example disciplinary action or being rejected for a promotion
- Outlining categories of detriments, for example opportunities for career progression
- Setting out detriments based on the level of severity and impact on the individual worker
Whilst this would permit employers greater flexibility to manage disputes, the Government is concerned that this option may produce unintended consequences and would create inconsistency with other definitions of detriments.
Regardless of which option is pursued, the Government has made clear in the consultation that it does not intend deductions from pay following industrial action (including deductions for partial performance) to be treated as detriments, as is currently the case.
Acas Uplift
The consultation also proposes adding detriment claims for taking industrial action into the list of claims to which the Acas uplift applies. This would mean that if a claim was brought by an individual claiming that they had experienced a detriment for taking industrial action, if the employer had unreasonably failed to follow the Acas Code of Practice on Disciplinary and Grievance Procedures where it applied, the amount the employer would have to pay in awards for a successful claim could be increased by up to 25%. If the employee had unreasonably failed to follow the Code, the award could be reduced by up to 25%.
Next Steps
We wait to see if the Government decides to limit the types of detriments or will prohibit them to the fullest extent. Regardless, these changes could have material impacts on employers’ industrial relations strategies and dispute management during industrial action. Therefore, now would be a good time to consider whether any improvements can be made to existing employee relations, ahead of this and other reforms to trade union duties and rights taking effect in October 2026.
The consultation acknowledges that employers should still be able to address misconduct that occurs during industrial action, provided that any actions are not taken for the sole or main purpose of penalising, preventing or deterring a worker from taking industrial action. However, care will need to be taken if detriments are defined widely to mitigate the risk of claims where decisions or processes coincide with or relate to periods of industrial action.
For further information on the latest developments, see our Reform Hub.
The consultation is open until 23 April 2026, and responses can be submitted online here.
