Draft Protection Against Detriment (Industrial Action) Regulations 2026

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.

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.

I was going to say it is a great pleasure to be on this Committee, but it is an even greater pleasure after that wonderful remark. I am very grateful, and it is a great pleasure to see you in the Chair, Ms Vaz. It is also a great pleasure to see the Minister, as usual; I thank her very much indeed for her explanation of the Government’s intentions for the draft regulations before us. As I think I have stressed at every Delegated Legislation Committee under this Department, it is important that these changes strike the right balance—in this instance, between ensuring that employees are able to exercise their right to industrial action in certain circumstances and in accordance with the law, and the interests of businesses and employers upon whom our future prosperity depends. To that end, I have a few questions about the measures. At the end of part one of the explanatory memorandum it states that guidance covering these regulations will be updated next month, in October. Does that mean that employers will be left in the dark about the specifics of their new, added responsibilities until the date that these regulations come into effect? More broadly, that seems to be a recurring theme of statutory instruments laid by this Department. I suggest that the hon. Lady and her colleagues try to put themselves in the position of a business, particularly a small business. Whether or not one agrees with the Government’s regulatory changes, businesses deserve fair and reasonable time to plan before regulations come into effect. That is good for everybody. I am afraid that, consistently, guidance and regulation come at the same time, which gives no time for due planning so that businesses can get ready. Will the Minister commit today to publishing guidance ahead of regulation coming in, so that employers have advance sight, notice and guidance? That would be appreciated by all companies, big and small, in all our constituencies. Secondly, following the Government consultation on these regulations earlier in the year, some respondents suggested that reducing the perceived risks to participation in industrial action could lead to more frequent and prolonged disputes with trade unions. I appreciate that the Government may not be concerned with trade union-created disputes becoming more frequent, but the public and businesses certainly are. Will the Minister clarify the Government’s response to those specific concerns in the public consultation? They were not addressed in the formal Government response, and it would be good to hear the official response. Thirdly, the law firm Dentons has made clear that employment tribunals will determine on the facts of each case whether a worker has suffered a detriment. But we know that the Government are already facing an unprecedented and growing backlog in the employment tribunals system. In the most recent statistics, which are from March 2026, there were 64,000 single claim open cases awaiting resolution. That is a 55% increase compared with the same period in 2024-25, and a 42% increase in the last year alone. We know that the Justice Committee felt required to launch an inquiry into the issue, and the Law Society has described the situation as “urgent”, stating: “It is alarming to see employment tribunal backlogs continuing to spiral”. What conversations has the Minister had with her colleagues in the Ministry of Justice on the impact of the Government’s employment policies in creating this additional backlog? Has an impact assessment been carried out by either her Department or the MOJ to determine how these specific regulations might further exacerbate what is quite a worrying backlog? Fourthly, during the passage of the Employment Rights Act through both Houses, the Opposition repeatedly tabled amendments that sought to put beyond doubt that protection from detriment for employees who engage in behaviour such as intimidation on picket lines, protest on company premises or at the personal residence of managers, or the harassment of non-striking workers is withheld. The Government chose at that time—many times, actually—to reject those amendments, suggesting that such behaviours would already not entitle protection. For the record, can the Minister state categorically that, if workers engage in those kinds of behaviours, which I think we would all disagree with, these regulations will not leave employers unable to take action against those serious perpetrators? Finally, paragraph 6.6 of the explanatory memorandum refers to the deduction of pay by an employer from a worker who takes industrial action. That is allowed under common law and unchanged by the regulations, but the paragraph also explains that “the question of precisely how much pay may lawfully be deducted” can be “complex”, and that the Government’s view is that the common law is not sufficiently developed in this area. That matters when we are debating these regulations, because employers deemed to have made an excessive pay deduction could be liable to have a complaint brought against them under section 236A of the 1992 Act. It seems, therefore, that the Government admit that this is a potential or actual grey area, but that they will not provide the clarity that we have sought, not least before these regulations come into effect. That could lead to serious consequences for employers. I realise that there are a few questions there, but I would be very grateful if the Minister could provide more clarity on them. If she cannot provide the answers today, I would be grateful if she could write to me with them. My final remark, if I may, Ms Vaz, is that we last met in a delegated legislation Committee on 8 July and—it happens from time to time—the Minister was not able to answer all my questions in that Committee. I wrote to her on 9 July. She is a very diligent person, and I know she will be horrified to learn that she has not yet responded to me, 55 days later. I gently request that she ask her officials to send that response as soon as possible.

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.