Draft Protection Against Detriment (Industrial Action) Regulations 2026

Kate Dearden Excerpts

Wednesday 2nd September 2026 General Committees

[The Minister for the Future of Work (Kate Dearden)]

I beg to move,

That the Committee has considered the draft Protection Against Detriment (Industrial Action) Regulations 2026.

It is a pleasure to serve under your chairship, Ms Vaz. This draft instrument was laid before the House on 24 June 2026 and relates to protection against detriment for workers taking protected industrial action under the Trade Union and Labour Relations (Consolidation) Act 1992. It is being introduced to provide essential protection to workers, ensuring that they can take industrial action without being treated unfairly by their employer as a result.

The 2024 Supreme Court judgment in Secretary of State for Business and Trade v. Mercer ruled that the current protections from detriment for trade union activity under section 146 of the Trade Union and Labour Relations (Consolidation) Act do not extend to protected industrial action. As a result, the Supreme Court made a declaration of incompatibility between UK legislation and article 11 of the European convention on human rights, the right to free association. This means that there is a gap in the law that could enable bad faith employers to unfairly penalise workers taking industrial action.

While it should always be treated as a last resort, this Government believe that industrial action is an integral and vital part of a worker’s right to express their collective voice if they choose to. If a worker does choose to take industrial action, it is essential that employers treat them fairly and with respect, as the vast majority of employers have always done. This draft instrument remedies the existing gap in the law, enabling workers to take industrial action without being at risk of suffering detriment as a result. It also ensures that UK law regarding detriments will be compatible with the European convention on human rights.

The draft protection against detriment regulations are made under section 236A of the 1992 Act, which was introduced by the Employment Rights Act 2025. The draft regulations, taken together with section 236A of the 1992 Act, prohibit all detriments to which an employer can subject a worker for the sole or main purpose of penalising, preventing or deterring protected industrial action.

This Government are committed to protecting workers who take industrial action while ensuring that employers are not unduly affected. The vast majority of employers already act responsibly and do not impose detriments on workers for taking industrial action. The draft legislation therefore targets the rare cases where such treatment may occur, without disrupting the day-to-day running of responsible businesses. That is why this legislation prohibits only detriments for the sole or main purpose of penalising, preventing or deterring industrial action.

That means that during a period of industrial action, ordinary business practices will not be banned as long as they are not used for the sole or main purpose of preventing, penalising or deterring a worker from taking industrial action. For example, disciplinary action may still be taken against a worker who has committed misconduct unrelated to strike action during an ongoing period of strike action. Employers will still be able to manage industrial action in ways that do not involve imposing a legal detriment. Examples of that include proactive negotiation prior to industrial action commencing and contingency planning to mitigate the impact.

Turning to the issue of deduction of pay following industrial action, in common law the principle of “No work, no pay” applies. This means that if a worker does not attend work for a day due to taking industrial action, the employer is under no obligation to pay them for that day. The draft regulations state that they do not affect that common law position. The rules enabling the deduction of pay on account of a worker having taken part in protected industrial action will remain as they are.

The draft statutory instrument also adds section 236A of the 1992 Act to the list of claims in schedule A2 to that Act. Detriments claims will therefore be added to the list of claims in schedule A2. For claims in this list, an employment tribunal is able to increase or decrease compensation awards by 25%, depending on whether the employer or worker has failed to follow the ACAS code of practice on disciplinary and grievance procedures. This will encourage fairness and co-operation by both employers and workers and will help timely resolution of disputes to allow employers to return to usual business as quickly as possible.

This statutory instrument is essential to provide workers with sufficient protection when exercising their fundamental right to take industrial action, and to make UK legislation compatible with the European convention on human rights. It prevents the door being left open for the very small number of bad faith employers who might exploit the gap in legislation that was highlighted by that Supreme Court judgment, while still allowing good faith employers to deal with industrial action in a non-punitive manner and enabling them to continue to use normal business practices during industrial action. I therefore commend this instrument to the House, and I trust that Members will support it.

[The Chair]

Before I call the Opposition spokesperson, let me place on record my thanks to him for the assiduous way he has dealt with delegated legislation when I have been in the Chair, and I wish him good luck in his new role. I call the shadow Minister.

--- Later in debate ---

[Kate Dearden]

I thank the shadow Minister for his remarks; it has been a pleasure to debate him in numerous secondary legislation Committees. He is always diligent with his questions and his scrutiny, and I appreciate that and wish him well in his new role.

Taking the shadow Minister’s questions in turn, he mentioned the impact on businesses of understanding the guidance that will be in place and ensuring that they feel prepared to address and adapt if necessary. We of course consulted business representatives, as we did at length throughout every stage of the Employment Rights Act, to gain their views on this guidance in particular. We will move at pace to ensure that employers get that support with the guidance so that they can comply as necessary.

I would add, however, that at the moment employers very rarely have to impose detriments, so we do not believe that there will be a significant amount of work for employers to do. I referred in my opening remarks to the frequency of employers imposing detriments on workers taking industrial action and how rare it is. Given the scale of employers having to understand the guidance, we do not really see the risk as significant, but of course we will work to publish as soon as possible and work closely with businesses, as we always do.

The shadow Minister mentioned the frequency of strike action, and I gently remind him of the unfortunate highs under the previous Government: 2.5 million days were lost to strike action under the previous Government. That figure has increasingly come down. We want to ensure that, alongside all these measures, we have good industrial relations and that employers, businesses, trade unions and Government can get around the table to discuss the challenges we face across this country as well as those we face in workplaces.

We recognise that trade unions, their representatives, business and employers will not agree on everything all the time, but fostering good industrial relations across workplaces across the country is my ambition and this Government’s ambition. We know that strike action is often the last resort, and it is an important right for workers to use if necessary, but we want to foster good industrial relations. That is a key part, not just of this draft instrument, but of our wider approach.

I have been working on consistently with colleagues in the Ministry of Justice on the issue of employment tribunals, recognising that backlog—it was not helped by the previous Government’s cuts, unfortunately, where we saw significant decreases to the employment tribunal system. It suits no one when they do not have access to justice—neither workers nor employers. People want a system that works for them and can work through cases, and to have that support and that ultimate access to justice. It is really important that we get those backlogs down. We have set up a taskforce with union representatives, businesses, employers, myself and my colleague in the Ministry of Justice, and we have been working at pace since October last year on how to fundamentally fix the system, recognising the pressures and the backlog we already face.

As I have said, on the particular instrument we are debating here, there have been two cases in recent years relating to detriments for participation in industrial action. We do not have the frequency of employers imposing detriments on workers taking industrial available to us, because it is so rare—but of course we are conscious of the point about employment tribunals.

On industrial action, the shadow Minister mentioned all the regulations that are already in place. Trade union activities and strike action are already highly regulated already. We have talked a lot about that throughout the passage of the Employment Rights Act, as he referred to. We want to ensure that workers abide by the regulations and the law in place, just as we want employers to do; that is why this debate is so important. That conduct is important for the good industrial relations that I mentioned earlier.

Finally, the shadow Minister mentioned pay and the impact on common law. Of course we want to ensure that we can enable that process of lessons being learned, so that we can understand and hear what is developing in common law and feed it into our work on this issue. I mentioned in my opening remarks what this instrument will and will not do, so hopefully our intentions in making this change have been understood. We will of course review common law as we always would.

On the response the shadow Minister is waiting for, I can only apologise; I will chase that and ensure he gets it in due course. I hope I have answered many of the questions from this debate and that all hon. Members can support this important principle of protecting workers from unfair treatment for taking industrial action. If any of our constituents were put in that position, we would want them to have the law behind them and to have that support, so I hope that colleagues across the House will support this statutory instrument.

Question put and agreed to.