By John Clark
In Secretary of State for Business and Trade v. Mercer, the Supreme Court determined that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)—which safeguards trade union members against detriment for participating in trade union activities—does not cover detriment arising from industrial action.
Section 76 of the Employment Rights Act 2025 fills this legislative gap by introducing protections for workers against employer-imposed detriments, particularly those meant to penalise, prevent, or discourage official industrial action. The Act also authorises the government to specify, through separate regulations, which detriments will be unlawful.
Last week, the government initiated a consultation asking for opinions on whether to ban all detriments related to industrial action or to create a list of specific detriments that are prohibited. The consultation shows that the government favours banning all detriments.
The government also proposes adding section 76 ERA 2025 claims to the list of claims where an employment tribunal may award an uplift of up to 25% in compensation if the employer does not adhere to the ACAS Code of Practice on Disciplinary and Grievance. Procedures (where it applies). This would bring the new detriment claim in line with claims under s. 146 TULRCA.
The consultation is open until 23rd April 2026 and can be accessed here.