From Construction Sites to Cockpits: The Blacklisting Regulations' Second Life

In 2009, the Information Commissioner raided a nondescript office in Droitwich and found 3,213 names. Construction workers — bricklayers, electricians, safety representatives — blacklisted for decades by the Consulting Association, quietly denied work across an entire industry for the crime of union membership. The Employment Relations Act 1999 (Blacklists) Regulations 2010 were Parliament's targeted response to that specific scandal. Most employment practitioners filed them under 'niche' and moved on. That was a mistake.

The Section 146 Gap

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects workers from detriment on grounds of trade union activities — but only those occurring 'at an appropriate time.' The phrase has been consistently interpreted to mean outside working hours, or during working hours with employer consent. Strikes, by definition, occur during working hours without consent. The protection does not apply.

In Secretary of State for Business and Trade v Mercer [2024] UKSC 12, the Supreme Court confirmed this reading unanimously. Lady Simler, giving the judgment of the court, found that the gap was incompatible with Article 11 ECHR and issued a declaration of incompatibility under section 4 of the Human Rights Act 1998. The declaration changed nothing in domestic law. It was, as declarations go, a polite signal to Parliament that the current position was unsustainable.

Enter the Pilots

In September 2019, UK-based Ryanair pilots — members of BALPA — participated in lawful strike action over pay and conditions. The airline's response was blunt: a spreadsheet of striking pilots was compiled at Stansted, sent to Dublin headquarters, and used to suspend each pilot's discretionary staff travel benefits for twelve months. Every pilot who walked out was penalised. None who stayed were.

Following Mercer, the claimants withdrew their section 146 claims. What remained were claims under the Blacklisting Regulations. Regulation 3 prohibits compiling, using, selling, or supplying a 'prohibited list' — one which 'contains details of persons who are or have been members of trade unions or persons who are taking part in or have taken part in the activities of trade unions' and is compiled to discriminate. The critical words are 'activities of trade unions.' Unlike section 146, there is no 'at an appropriate time' qualifier.

Three Arguments, All Rejected

In Morais v Ryanair DAC [2025] EWCA Civ 19, the Court of Appeal — Bean LJ, with Peter Jackson and Nicola Davies LJJ agreeing — dismissed Ryanair's appeal on all grounds. The case had already survived the Employment Tribunal (EJ Tobin) and the Employment Appeal Tribunal (HHJ Auerbach, EA-2021-000275-DA). Bean LJ's judgment is notable for its clarity and for its forensic use of legislative history.

First, Ryanair argued that 'activities of trade unions' must carry the same meaning across all employment legislation — meaning the TULRCA qualifier should be imported. Bean LJ rejected this at [48], noting that the Interpretation Act presumption is rebuttable. Drew v St Edmundsbury Borough Council [1980] ICR 513, on which Ryanair relied, addressed unfair dismissal law specifically and 'gives no support' to a universal exclusion of strikes from the ordinary meaning of 'trade union activities.' The Employment Tribunal had put the point well: it would be 'unsustainable' to hold that attending union meetings, participating in ballots, and organising a strike are all trade union activities — but actually walking out is not.

Second, Ryanair contended that only industrial action fully compliant with Part V of TULRCA (ballot and notice requirements) should attract protection. Bean LJ found no basis for importing those requirements into the Regulations. BIS guidance published alongside the 2010 Regulations had explicitly stated that 'participating in official industrial action would also probably be categorised as trade union activity.' The deliberate omission of any lawfulness requirement was not an oversight — it was the point.

Third, Ryanair sought to relitigate the legality of the strike itself — having previously brought and discontinued High Court injunction proceedings against BALPA. The Court held this was an abuse of process. You cannot lose in one court and try the same question in another.

Settled Law

Ryanair applied for permission to appeal to the Supreme Court. On 4 June 2025, Lord Reed, Lord Hamblen, and Lady Simler refused permission, finding that the application 'does not raise an arguable point of law.' The Court of Appeal's interpretation stands as the final word.

It is worth pausing on what this means. The Blacklisting Regulations — drafted to address construction industry blacklists, largely ignored by mainstream employment practitioners for fifteen years — now provide a binding route for any worker penalised for participation in trade union-organised industrial action. The protection does not require the action to be lawful under Part V of TULRCA. It does not require compliance with ballot or notice provisions. It requires only that the employer compiled or used a list to discriminate on the basis of trade union activities, and that participation in a union-organised strike constitutes such an activity.

Section 236A and the ERA 2025

Parliament has not been idle. In response to the Mercer declaration, the Employment Rights Act 2025 introduces a new section 236A into TULRCA, creating an explicit right not to suffer detriment for participation in 'protected industrial action' as defined by section 219. The provisions are expected to come into force in October 2026.

This does not make the Blacklisting Regulations redundant. The two routes differ materially:

The practical upshot: where an employer creates a list of strikers and acts on it — as Ryanair did — the Blacklisting Regulations offer a broader cause of action, a guaranteed minimum award, a reverse burden of proof, and an alternative county court route under regulation 13. Where there is no list but rather an individualised penalty, section 236A will be the appropriate vehicle once in force. In many cases, both will be available.

What Practitioners Should Know

• Plead it. In any case where an employer penalises workers who participated in union-organised industrial action and a list or record of strikers was compiled, the Blacklisting Regulations should be pleaded alongside any section 146 or (once available) section 236A claim. The Regulations' scope extends to unofficial action — no Part V compliance is required.
• The minimum award matters. Regulation 11(5) provides a minimum award of £5,000 per claimant. In cases where individual losses are modest — staff travel benefits, discretionary perks — this floor makes claims economically viable that might otherwise not be worth pursuing.
• The reverse burden of proof. Regulation 9(2) mirrors the discrimination burden: once the claimant establishes facts from which the tribunal could conclude that a prohibited list was compiled or used, the burden shifts to the employer to show it was not. This is a significant evidential advantage.
• Regulation 13 opens the county court. Unlike most employment claims, blacklisting gives rise to a concurrent action for breach of statutory duty in the county or High Court, with injunctive relief available. This matters for ongoing or threatened list use.
• Abuse of process. An employer who has unsuccessfully challenged the legality of industrial action in one set of proceedings cannot relitigate the point collaterally.

I should be candid: blacklisting claims remain vanishingly rare. Most practitioners — and I include myself — would not instinctively reach for a 2010 statutory instrument designed for the construction industry when advising a striking worker. Morais should change that instinct. The Regulations are broader, the burden more favourable, and the minimum award more generous than anything section 146 or the incoming section 236A provides.

The Consulting Association kept its list in a filing cabinet. Ryanair kept its on a spreadsheet. The medium changes; the impulse does not. What the Court of Appeal confirmed — and the Supreme Court declined to disturb — is that a regulation drafted for one kind of list catches them all.

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