Morais & Ors v Ryanair DAC

Factual and Procedural Background

This appeal concerns the interpretation of the Employment Relations Act 1999 (Blacklists) Regulations 2010 ("the Blacklisting Regulations"). The Claimants are pilots employed by Company A and members of a recognised trade union representing UK pilots. The pilots receive discretionary travel concessions from Company A, which can be amended or withdrawn at the airline's discretion.

A trade dispute arose between the union and Company A regarding pay and terms of employment. The union conducted a strike ballot in July-August 2019 with a majority voting in favour of industrial action. Strike dates were notified, and Company A sought an interim injunction to restrain the strike, which was refused by the High Court. Company A discontinued its claim and agreed to pay the union’s costs.

Subsequently, Company A communicated that pilots participating in further strikes would lose discretionary travel benefits for 12 months. The Claimants issued a claim alleging that the withdrawal of travel benefits constituted an unlawful detriment under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") or alternatively that Company A had compiled a prohibited list under the Blacklisting Regulations by identifying strikers.

The Employment Tribunal (ET) held that the Claimants were participating in trade union activities for the purposes of the Blacklisting Regulations and the 1992 Act, that the Regulations applied notwithstanding Company A’s headquarters being outside the UK, and that the compilation of a list for Company A’s own use constituted blacklisting. Company A appealed to the Employment Appeal Tribunal (EAT), challenging aspects of the ET’s ruling except the "own use" point. The EAT dismissed the appeal under section 146 but upheld the finding under the Blacklisting Regulations, granting permission to appeal to the Court of Appeal.

The Court of Appeal’s judgment follows the recent Supreme Court decision in Mercer, which held that section 146 of the 1992 Act does not protect workers from detriment short of dismissal for participation in industrial action, and that a declaration of incompatibility with the European Convention on Human Rights (ECHR) was appropriate.

Legal Issues Presented

1. Whether the phrase "activities of trade unions" in regulation 3(2)(a) of the Blacklisting Regulations includes participation in industrial action.
2. Whether section 146(1)(b) of the 1992 Act and/or regulation 3(2)(a) of the Blacklisting Regulations extends protection to all those taking part in "union industrial action," and if so, whether that includes only protected industrial action.
3. Whether issue estoppel or abuse of process prevents Company A from contesting the lawfulness of the strike action in these proceedings, given prior High Court litigation.
4. Whether the Blacklisting Regulations apply in the circumstances of this case, including the effect of the employer compiling a list for its own use of employees who took strike action.

Arguments of the Parties

Appellant's Arguments

• The phrase "activities of trade unions" in the Blacklisting Regulations should be interpreted identically to the materially identical phrase in section 146(1)(b) of the 1992 Act, which does not include participation in industrial action.
• Section 3(6) of the Employment Relations Act 1999 requires identical meanings for expressions used in both that Act and the 1992 Act, supported by the Interpretation Act 1978 and judicial precedent (Drew v St Edmundsbury Borough Council).
• The EAT erred in interpreting the phrase to include industrial action and in creating an undefined concept of "union industrial action" that conflicts with the statutory framework governing industrial action.
• Protection from blacklisting should not extend to individuals participating in industrial action that breaches their contracts or is unlawful on the part of the union.
• There is no issue estoppel preventing Company A from contesting the lawfulness of the strike action because the Claimants were not parties to the prior High Court litigation, which was interlocutory and not determinative.

Respondents' Arguments

• The phrase "activities of an independent trade union" naturally includes participation in or organisation of lawful industrial action, and the Blacklisting Regulations do not contain the qualifying phrase "at an appropriate time" found in section 146 of the 1992 Act.
• The legislative history and government consultation documents support an interpretation that official industrial action is included within "trade union activities" for the purposes of the Blacklisting Regulations.
• The Blacklisting Regulations do not require compliance with the procedural protections of Part V of the 1992 Act for industrial action to be considered a trade union activity.
• It would be an abuse of process for Company A to relitigate the lawfulness of the strike ballot after abandoning prior litigation following an adverse ruling.

Interested Party (Secretary of State) Submissions

• The ordinary meaning of "activities of a trade union" includes industrial action.
• The consultation and guidance documents confirm that official industrial action organised by trade unions is covered by the Blacklisting Regulations.
• The Regulations do not require compliance with Part V of the 1992 Act to attract protection.
• Failure to protect participants in official industrial action under the Blacklisting Regulations risks breaching the UK’s obligations under Article 11 of the ECHR.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging that the natural meaning of "activities of an independent trade union" includes organising industrial action, as supported by the Mercer judgment. The court distinguished the statutory context of unfair dismissal law, where Drew established that "trade union activities" exclude participation in industrial action for the purposes of dismissal claims, from the broader context of the Blacklisting Regulations, which do not contain the limiting phrase "at an appropriate time" found in section 146 of the 1992 Act.

The court rejected the appellant’s reliance on section 3(6) of the Employment Relations Act 1999 to equate the meaning of the phrase in the Blacklisting Regulations with that in the 1992 Act, noting that the phraseology differs and that the presumption of consistent meaning can be rebutted.

The court gave significant weight to the legislative history and government consultation documents, which indicated that the Blacklisting Regulations were intended to cover official industrial action as a trade union activity, thereby prohibiting blacklisting on that basis.

Regarding the second ground, the court found no textual or contextual basis for requiring industrial action to be protected under Part V of the 1992 Act for the Blacklisting Regulations to apply. The court accepted that industrial action must be official (organised or endorsed by the union) but rejected the importation of balloting and procedural requirements from Part V into the Regulations.

On the third ground, the court agreed that relitigating the lawfulness of the strike ballot was an abuse of process, given the prior High Court judgment refusing an injunction and the discontinuance of litigation by Company A. Although formal issue estoppel did not strictly apply, the abuse of process doctrine prevented Company A from re-arguing the point.

The court also found Lambert J’s judgment on the validity of the strike ballot convincing, including the rejection of the argument that new union members joining during the ballot invalidated the process.

Holding and Implications

The court DISMISSED the appeal by Company A.

The direct effect is that the Blacklisting Regulations protect employees participating in official industrial action organised or endorsed by trade unions from being blacklisted, including through the compilation of prohibited lists. The court confirmed that the phrase "activities of trade unions" in the Blacklisting Regulations includes participation in industrial action, without requiring compliance with all procedural protections of Part V of the 1992 Act.

The court upheld the finding that Company A’s withdrawal of discretionary travel benefits from pilots who participated in strike action constituted a detriment linked to blacklisting.

No new precedent was set beyond clarifying the interpretation of the Blacklisting Regulations in light of existing authority, legislative history, and human rights considerations. The decision confirms the protection afforded by the Blacklisting Regulations against discrimination related to trade union activities, including official industrial action.