The consultation (26 pages / 703KB PDF), which opened on 26 February, comes ahead of a new provision within the UK’s Employment Rights Act (ERA) taking effect later this year that will prevent employers from penalising, preventing or deterring workers from taking part in “official industrial action”.
The new ERA provision follows legislative amendments that took effect on 18 February that significantly strengthened automatic unfair dismissal protection for participating in industrial action. This change removed the previous 12-week limit on protection against unfair dismissal for employees participating in protected industrial action.
The provision, which will come into force in October 2026, will ensure that a worker has the right not to be subjected to detriment of a “prescribed description” for the sole or main purpose of preventing or deterring them from taking official industrial action. It will also prevent employers from penalising the worker for participating in strikes.
The provision plugs a gap in UK-wide employment legislation identified by a 2024 Supreme Court ruling. The decision (44-page / 367KB PDF) which overturned a 2022 judgment of the Court of Appeal in England and Wales, held that existing protections for workers against detriment for taking part in trade union activities did not extend to their participation in lawful strike action.
The court also found that existing legislation was in direct contravention of Article 11 of the European Convention on Human Rights (ECHR), which provides protections relating to the freedom of assembly and association, including strike action. In the case in question, an employer had taken disciplinary action against employees for their participation in lawful strike action.
However, the decision left the UK with an unusual legal position where separate laws on unfair dismissal meant that employees would be protected from dismissal for a reason connected to their participation in industrial action, but sanctions that fell short of dismissal were not prohibited.
The ERA provisions are designed to address this gap. The government says it is consulting ahead of the new right taking effect on October 2026. The consultation is expected to help inform its thinking on a new statutory definition of what will fall into the category of prescribed detriments.
In the consultation paper, the government does not list a series of specific actions that are detriments, instead, preferring to prohibit all detriments. It explains that detriment has been interpreted broadly by case law to mean a disadvantage and can include many actions or omissions such as disciplinary processes, bullying, being overlooked for promotion or training opportunities.
Although the government has not ruled out creating a specific list, it has expressed concern that such a list could allow employers acting in bad faith to abuse unprohibited detriments and devise novel new ones that are not expressly prohibited.
It suggests that a simple prohibition on all detriments is consistent with other areas of the law that prohibit detriments, such as whistleblowing.
The paper also explains that the detriment must be against the individual and not the trade union. This means that actions or inactions that might be detrimental to the union, such as de-recognition, but are not directly detrimental to a worker would not be prohibited under this reform. The consultation closes on 23 April 2026.
Commenting on the consultation, employment law expert Anthony Convery of Pinsent Masons said: “A key concern about the prohibition of imposing a detriment for taking industrial action has been whether withholding pay in response to the striking employee’s non-performance of their contract would fall under the category of a prescribed detriment as defined by the government in regulations.”
He said legislative change would have been required to expressly bring pay deductions within the scope of detrimental treatment as the Supreme Court clarified in 2024 that UK common law, international labour conventions and the EHRC do not class withholding pay in these circumstances as a sanction or a detriment. “The government has been clear that its preference for a general definition of prescribed detriments will not interfere with this aspect of the Supreme Court’s interpretation of what constitutes a detriment,” he added. “Although it may have been preferrable for legislation to expressly codify the fact that pay deductions are not detriments, the legal position will remain clear.”
Neil Black, an employment expert at Pinsent Masons, said the new ERA provision would mark a step change for the protection of workers’ collective rights in the UK regarding industrial action. “This change will mean that workers whose engagement is terminated because of industrial action will be protected for the first time as only employees had automatic unfair dismissal protection for participating in industrial action,” he said. “Termination of a worker’s contract will now be a detriment.”
The change may have limited practical impact on many businesses in the short term. “Employers are already used to general prohibitions on treating workers detrimentally, for example, when workers raise whistleblowing concerns or assert statutory rights, and it is often difficult to prove that any detriment was imposed solely or mainly because of a protected act,” said Black. “Employers also tend to avoid imposing detriments during industrial action, as doing so can damage industrial relations and existing law already prevents detriments linked to blacklisting trade union members.”
However, he warned that the even government recognises that workers may perceive ordinary business decisions – such as adjustments to overtime or promotion outcomes – as a form of punishment or deterrence related to industrial action. “The key practical effect of this change is that employers will need to strengthen their decision‑making processes,” he said. “That means ensuring that any action which may negatively affect workers involved in industrial action is supported by clear internal documentation and communications explaining the business rationale. This will be especially important in grey areas where the business must take action that is unfavourable but stems indirectly from the effects of industrial action, for example, reducing discretionary bonuses because industrial action has depressed profits.”
Convery said employers should also be mindful that detriment protection for employees taking part in industrial action can be relied upon at any time before, during or after industrial action. “This means, for example, that an employee may try to tie less favourable treatment, such as a promotion decision, to the fact they participated in industrial action sometime in the past.”