The claimants in the employment tribunal are airline pilots employed by the respondent and based in Great Britain. They are members of the trade union BALPA. They all participated in a strike called by BALPA. Because of that the respondent withdrew concessionary travel benefits from them for a year. They complained that they had been subjected to detrimental treatment contrary to (a) section 146 Trade Union and Labour Relations (Consolidation) Act 1992; and (b) regulation 9 Employment Relations Act 1999 (Blacklists) Regulations 2010.
In a decision arising from a preliminary hearing the tribunal decided that, in taking strike action the claimants were taking part in the activities of trade unions or trade union activities within the meaning of regulation 3 of the 2010 Regulations. It did not err in so finding. The words in their ordinary meaning embraced participation in industrial action, and nothing in the 2010 Regulations, the parent statute, or the 1992 Act pointed to a different conclusion. The tribunal also did not err in concluding that the fact that certain actions related to the withdrawal of the benefits were taken in Dublin did not mean that the claimants did not have a cause of action under regulation 9.
In light of the wording of section 146 as read down by the EAT in Mercer v Alternative Future Group Limited [2021] IRLR 620, the tribunal’s conclusion that, in taking part in the strike, the claimants were taking part in trade union activities for the purposes of section 146, was also correct.
In light of that read-down wording, it was, however, wrong to conclude that the outcome, in respect of section 146 and the 2010 Regulations, depended on the strike being action to which section 219 of the 1992 Act applied. But it was right in any event to conclude that, in light of the outcome of High Court litigation against BALPA in which that was at issue, it was not open to the respondent to run the point as a defence to the tribunal claims, as that would amount to an abuse of process.
[2021] UKEAT 2020-000006
Bailii
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.669834
