Employment Rights Act 2025: Consultation on protection from detriment for taking industrial action

Ahead of the provisions of the Employment Rights Act 2025 ("ERA 2025") coming into force, the government has launched a new consultation seeking views on how protections for workers who take lawful industrial action will work in practice. Below we look at the options being considered by the government and what this could mean for employers. 

What is the current position?

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") gives workers the right not to be subjected to any detriment by their employer for the purpose of penalising, preventing or deterring them from being a trade union member, taking part in trade union activities, or making use of trade union services.

However, in 2024, the Supreme Court found in the case of Mercer that the protection under section 146 of TULRCA did not extend to detriments for taking industrial action. This gap in legislation is also considered incompatible with Article 11 of the European Convention on Human Rights - the right to free assembly and association.

What will change under the ERA 2025?

The ERA 2025 addresses this gap by inserting a new section 236A into TULRCA, which provides that a worker has the right not to be subjected to a detriment by their employer if the act or failure to act takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising them for doing so.

The ERA 2025 gives the government the power to set out in regulations what constitutes prohibited detriments, providing the option to either prohibit all detriments or create a defined list.

What is the consultation seeking views on?

The government has launched a consultation seeking views on what should constitute ‘prohibited detriments’. Two options are being considered:

Option A: Prohibit all detriments

• Prohibit all detriments imposed on a worker for the sole or main purpose of penalising, preventing or deterring them from taking industrial action. However, pay deductions for time spent on strike will not be treated as detriments (as per the current position).

This is the government's preferred option as it is consistent with existing protection against detriments for trade union membership or activity under section 146 of TULRCA, which does not limit protection to a subset of detriments.

Option B: Create a list of prohibited detriments

• Create a defined list of detriments that employers are prohibited from imposing. 

This would allow the government to prohibit the most egregious detriments while giving employers greater flexibility to manage disputes. However, the government is concerned that workplace environments evolve and therefore the list could quickly become outdated.

Acas Code uplift

The government is also considering adding detriment claims for taking industrial action to the list of claims where an uplift or reduction of up to 25% can be awarded by an employment tribunal where there has been a failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures.

Timing

The consultation opened on 26 February 2026 and closes on 23 April 2026. The changes are expected to be brought into force in October 2026.

What do the changes mean for employers?

Unionised employers will need to be mindful of this change and ensure any actions taken in relation to the industrial action aren’t potentially construed as a detriment (for example, a ban on striking employees working overtime post the strike).  

The Employment Rights Act 2025 is reshaping the rules around industrial action — and this is just one of many significant changes on the way. Our expert employment lawyers are hosting a webinar to walk employers through the reforms already in force, those arriving in April 2026, and the practical steps your organisation should be taking now.