Sixth Delegated Legislation Committee
Wednesday 2nd September 2026
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14:30
14:30
Speaker 3
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Speaker 3
Thank you chair. It's a pleasure to serve under your chair today, and I beg to move that. The committee considers the Protection Against Detriment Industrial Action Regulations 2026. This instrument was laid before the House on the 24th of June 2026, and relates to protection for detriments for workers taking protected industrial action under the Trade Union and Labour Relations Act 1992. This instrument is being introduced to provide essential protection to workers, ensuring they can take industrial action without being treated unfairly by their employer.
As a result, the 2024 Supreme Court Mercer judgment ruled that the current protections from detriment for trading activity under section 1.6 of the Trade Union and Labour Relations 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 which could enable bad faith employers to unfairly penalise workers who are taking industrial action.
While it should always be treated as a last resort, this government believes that industrial action is an integral and vital part of a worker's right to express their collective voice if they wish to choose to do so. If a worker does choose to take industrial action, it's essential that employers treat them fairly and with respect, as the vast majority of employers have always done . This statutory 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 the UK law regards regarding detriments will be compatible with the European Convention on Human Rights. The Protection Against Detriment regulations are made under section 236 A of the Trade Union and Labour Relations Act 1992. This section was introduced by the Employment Rights Act 2025. These regulations, taken together with section two three, six A, prohibits all detriments that an employer can subject a worker to for the sole or main purpose of penalising, preventing or deterring protected industrial action.
This government is 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. This 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 is prohibiting detriments only for the sole or main purpose of penalising, preventing or deterring industrial action.
This means that during a period of industrial action, ordinary business practices will not be banned as long as these practices were 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 on related strike action during an ongoing period of strike action. Employers will still be able to manage industrial action in ways that don't involve imposing illegal detriment.
Examples of this include proactive negotiation prior to industrial action commencing, and contingency planning to mitigate the impact. And now I'd like to turn 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. These regulations state that they do not affect this 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. This statutory instrument also adds section 236 A to the list of claims in schedule A2 to the Trade Union and Labour Relations 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 Code of Practice on Disciplinary and Grievance procedures.
This will encourage fairness and cooperation by both employers and workers, and will help timely resolution of disputes to allow employers to return to usual business as quickly as possible. To conclude, chair. This statutory instrument is essential to provide workers with sufficient protection when exercising their fundamental right to take industrial action, and making 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 may 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 enable 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 today.
As a result, the 2024 Supreme Court Mercer judgment ruled that the current protections from detriment for trading activity under section 1.6 of the Trade Union and Labour Relations 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 which could enable bad faith employers to unfairly penalise workers who are taking industrial action.
While it should always be treated as a last resort, this government believes that industrial action is an integral and vital part of a worker's right to express their collective voice if they wish to choose to do so. If a worker does choose to take industrial action, it's essential that employers treat them fairly and with respect, as the vast majority of employers have always done . This statutory 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 the UK law regards regarding detriments will be compatible with the European Convention on Human Rights. The Protection Against Detriment regulations are made under section 236 A of the Trade Union and Labour Relations Act 1992. This section was introduced by the Employment Rights Act 2025. These regulations, taken together with section two three, six A, prohibits all detriments that an employer can subject a worker to for the sole or main purpose of penalising, preventing or deterring protected industrial action.
This government is 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. This 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 is prohibiting detriments only for the sole or main purpose of penalising, preventing or deterring industrial action.
This means that during a period of industrial action, ordinary business practices will not be banned as long as these practices were 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 on related strike action during an ongoing period of strike action. Employers will still be able to manage industrial action in ways that don't involve imposing illegal detriment.
Examples of this include proactive negotiation prior to industrial action commencing, and contingency planning to mitigate the impact. And now I'd like to turn 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. These regulations state that they do not affect this 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. This statutory instrument also adds section 236 A to the list of claims in schedule A2 to the Trade Union and Labour Relations 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 Code of Practice on Disciplinary and Grievance procedures.
This will encourage fairness and cooperation by both employers and workers, and will help timely resolution of disputes to allow employers to return to usual business as quickly as possible. To conclude, chair. This statutory instrument is essential to provide workers with sufficient protection when exercising their fundamental right to take industrial action, and making 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 may 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 enable 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 today.
14:35
Speaker 2
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Speaker 2
The question is that the Committee has considered the draft Protection Against Detriment Industrial Action Regulations 2026, and before I call the opposition spokesperson, can I just place on record my thanks to him. Wish him good luck in his new role. And thank you for the assiduous way you've dealt with the delegated legislation. When I've chaired Shadow Minister Gareth Davies.
14:35
Speaker 4
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Speaker 4
What I was going to say it's a great pleasure to be on this committee. It's an even greater pleasure after that wonderful remark. I'm very grateful and pleasure to see you in the chair. It's a great pleasure to see the honourable lady, as usual. I'd like to thank her very much indeed for the explanation that she's given in terms of the government's intentions when it comes to the regulations that are before us today.
And as I've stressed, I think at every delegated legislation committee for this department, it is very important that we think about how these changes can strike the right balance. And in this instance, ensuring, for example, that employees are, of course , able to exercise their right to industrial action in certain circumstances and in accordance with the law, but also the interests of businesses and employers upon who our future prosperity depends. And so to that end, I have just a few questions about the measures in front of us today.
Firstly, at the end of part one of the memorandum, it states that guidance covering these regulations will be updated next month in October 2026. So does this mean, therefore, that employers will be left in the dark as to the specifics of their new added responsibilities? Literally right up to the date that these regulations come into effect? And if I may, Madam Chair, I make a broader point to the Department that on a broader level, it does seem to be a recurring theme of these discussions and these committees.
I'd suggest to the honourable lady and her colleagues that they try and put themselves in the position of a business, in particular small businesses. And whether you agree with the government's regulatory changes or you disagree, businesses deserve fair and reasonable time to plan when these regulations come into effect. That's good for everybody. And what has happened consistently, I'm afraid, is that those that guidance and regulation come at the same time, which gives no due planning or time for businesses to get ready.
So will she commit today to going forward, publishing guidance ahead of regulation coming in so that employers have that advanced site and notice and guidance, which I think would be appreciated from all corners of companies for big and small in all of our constituents constituencies. Secondly, in response to 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 a more frequent and prolonged disputes with trade unions.
The government may not be concerned with trade union created disputes becoming more frequent, and I appreciate that. But the public and businesses certainly are. So can I. Ask the Minister to clarify the government's response to those specific concerns that were in the public consultation, in the formal response by the government? Those concerns were not addressed, and it would be really good to hear what the response, the official response of the government to those concerns are today.
Thirdly, the law firm Dentons have 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 is already facing an unprecedented and growing backlog in the employment tribunals system. As of the most recent statistics, which are of March 2026, there were 64,000 single claim open cases awaiting resolution, and that is a 55% increase compared to the same period in 2024 2025, and a 42% increase in just the last year alone.
We know that the Justice Select Committee felt required to launch an inquiry into this issue, and the Law Society have described the situation as urgent, and in their words, they state that it is alarming to see employment tribunal backlogs continuing to spiral. So what? 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 the impact assessment been carried out by either her department or the MoJ on how these specific regulations might further exacerbate what is quite a worrying backlog? Fourthly, repeatedly during the passage of the Employment Rights Act through both houses, the opposition tabled amendments that sought to put beyond doubt that protection from detriment for employees who engage in behavior such as the intimidation on picket lines, protest on company premises or at the residence, personal residence of managers, or the harassment of non-striking workers is withheld.
The the government chose at that time those many times actually to reject those amendments, suggesting that such behaviours would already not entitled protection . For the record. Can the Honourable Lady state categorically that workers who engage in those kind of behaviours, which I think we would all disagree with, will not mean that employers are left unable to take action against those serious perpetrators. Finally, paragraph 6.6 of the Honourable Lady's explanatory memorandum refers to the deduction of pay from a worker who takes industrial action by an employer.
This allowed under common law and unchanged. This is allowed under common law and unchanged by regulations. However, the paragraph also explains the question of precisely how much pay may lawfully be deducted and can be complex, and the government's view is that the common law is not sufficiently developed in this area. Now that matters when debating these regulations today, because employers deemed to make a pay deduction which is excessive could be liable to have a complaint brought against them under section 236.
A it seems, therefore, that the government admits that this is a potential or actual grey area, but they will not provide the clarity that we have sought, not least before these regulations come into effect, which could lead to serious consequences for employers. So I'd be very grateful. I realise there are a few questions there, but I'd be grateful if she could stand up and provide more clarity on them. If she cannot provide the answers today, I'd be grateful if she could write to me with them.
And just my final remark, if I may, Madam Chair. We last met on the 8th of July in a delegated legislation committee, and it happens from time to time with the honourable lady, who is not able to answer all of my questions in that Committee. I wrote to her on the 9th of July. Now, the honourable Lady is a very diligent person. I know she'll be horrified to learn that she has not yet responded to me 55 days later, and so I would be grateful and gently request that she ask her officials to send that response as soon as possible.
Thank you.
And as I've stressed, I think at every delegated legislation committee for this department, it is very important that we think about how these changes can strike the right balance. And in this instance, ensuring, for example, that employees are, of course , able to exercise their right to industrial action in certain circumstances and in accordance with the law, but also the interests of businesses and employers upon who our future prosperity depends. And so to that end, I have just a few questions about the measures in front of us today.
Firstly, at the end of part one of the memorandum, it states that guidance covering these regulations will be updated next month in October 2026. So does this mean, therefore, that employers will be left in the dark as to the specifics of their new added responsibilities? Literally right up to the date that these regulations come into effect? And if I may, Madam Chair, I make a broader point to the Department that on a broader level, it does seem to be a recurring theme of these discussions and these committees.
I'd suggest to the honourable lady and her colleagues that they try and put themselves in the position of a business, in particular small businesses. And whether you agree with the government's regulatory changes or you disagree, businesses deserve fair and reasonable time to plan when these regulations come into effect. That's good for everybody. And what has happened consistently, I'm afraid, is that those that guidance and regulation come at the same time, which gives no due planning or time for businesses to get ready.
So will she commit today to going forward, publishing guidance ahead of regulation coming in so that employers have that advanced site and notice and guidance, which I think would be appreciated from all corners of companies for big and small in all of our constituents constituencies. Secondly, in response to 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 a more frequent and prolonged disputes with trade unions.
The government may not be concerned with trade union created disputes becoming more frequent, and I appreciate that. But the public and businesses certainly are. So can I. Ask the Minister to clarify the government's response to those specific concerns that were in the public consultation, in the formal response by the government? Those concerns were not addressed, and it would be really good to hear what the response, the official response of the government to those concerns are today.
Thirdly, the law firm Dentons have 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 is already facing an unprecedented and growing backlog in the employment tribunals system. As of the most recent statistics, which are of March 2026, there were 64,000 single claim open cases awaiting resolution, and that is a 55% increase compared to the same period in 2024 2025, and a 42% increase in just the last year alone.
We know that the Justice Select Committee felt required to launch an inquiry into this issue, and the Law Society have described the situation as urgent, and in their words, they state that it is alarming to see employment tribunal backlogs continuing to spiral. So what? 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 the impact assessment been carried out by either her department or the MoJ on how these specific regulations might further exacerbate what is quite a worrying backlog? Fourthly, repeatedly during the passage of the Employment Rights Act through both houses, the opposition tabled amendments that sought to put beyond doubt that protection from detriment for employees who engage in behavior such as the intimidation on picket lines, protest on company premises or at the residence, personal residence of managers, or the harassment of non-striking workers is withheld.
The the government chose at that time those many times actually to reject those amendments, suggesting that such behaviours would already not entitled protection . For the record. Can the Honourable Lady state categorically that workers who engage in those kind of behaviours, which I think we would all disagree with, will not mean that employers are left unable to take action against those serious perpetrators. Finally, paragraph 6.6 of the Honourable Lady's explanatory memorandum refers to the deduction of pay from a worker who takes industrial action by an employer.
This allowed under common law and unchanged. This is allowed under common law and unchanged by regulations. However, the paragraph also explains the question of precisely how much pay may lawfully be deducted and can be complex, and the government's view is that the common law is not sufficiently developed in this area. Now that matters when debating these regulations today, because employers deemed to make a pay deduction which is excessive could be liable to have a complaint brought against them under section 236.
A it seems, therefore, that the government admits that this is a potential or actual grey area, but they will not provide the clarity that we have sought, not least before these regulations come into effect, which could lead to serious consequences for employers. So I'd be very grateful. I realise there are a few questions there, but I'd be grateful if she could stand up and provide more clarity on them. If she cannot provide the answers today, I'd be grateful if she could write to me with them.
And just my final remark, if I may, Madam Chair. We last met on the 8th of July in a delegated legislation committee, and it happens from time to time with the honourable lady, who is not able to answer all of my questions in that Committee. I wrote to her on the 9th of July. Now, the honourable Lady is a very diligent person. I know she'll be horrified to learn that she has not yet responded to me 55 days later, and so I would be grateful and gently request that she ask her officials to send that response as soon as possible.
Thank you.
14:43
14:43
14:43
Speaker 3
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Speaker 3
Thank you, chair, and I'd like to thank the Shadow Minister for his remarks. And so it has been a pleasure to debate him in numerous secondary legislation committees. He's always very diligent with his questions and his scrutiny, and I appreciate that and wish him well in his new role and moving to his questions. In turn, he mentioned the impact on businesses and understanding the guidance that will be in place and ensuring they feel prepared to address and adapt if necessary.
We, of course, consulted with business representatives, as we do at length throughout every single stage of the Employment Rights Act, and particularly to gain their views on this guidance, and we will be moving at pace to make sure that employers get that support with the guidance so they can, of course, comply as necessary. But what I would add is that the moment that employers very rarely have to impose detriments, so we don't believe that there will be a significant amount of work for employers to do in terms of the frequency of employers imposing detriments on workers.
Take industrial action. I reference that in my introductory remarks just how rare it is. So in terms of that scale of employers having to really understand the guidance, we don't see that risk as significant. But of course, work to publish as soon as possible and work closely with them as we always do. And he mentioned the frequency of strike action. I would just gently remind him, and unfortunately, the highs under the previous government, 2.5 million and 2.6 million deaths were lost to strike action under the previous government.
And that has increasingly come down. And we want to make sure, alongside all these measures, that we have good industrial relations in this country where employers and businesses and trade unions and government can get round the table, discuss the challenges that we face across this country, as well as those that we face in workplaces. We recognise that not all the time trade unions, their representatives and businesses and employers won't agree on absolutely everything. But it's that good industrial relations and fostering that nature across workplaces, across the country, which is my ambition, this government's ambition.
So we know that often strike action is, of course, the last resort. It's an important right for workers to use that if necessary. But we want to foster that good industrial relations. And that's a really, really key part of not just what we're discussing today, but our wider approach on employment tribunals. This is an issue I've been working on consistently with my colleagues in the Ministry of Justice, recognising that backlog. It's not having helped by the previous government's cuts, unfortunately, where we saw significant increases to the employment tribunal system.
But it suits no one when they don't have access to justice, does it? For workers themselves, for employers who want a system that works for them, can work through cases and have that support and have that ultimate access to justice, it's really important that we get those backlogs down. We've set up a task force with union representatives, business employers, myself and my colleague in the Ministry of Justice, and we've been working at pace since October last year of how we do fundamentally fix the system going forward.
Recognising the pressures and the backlog that we already have to face, as I've said for this particular issue that we are debating today, there have been two cases in recent years relating to detriments, participation in industrial action, and we don't have that availability for frequency of employers imposing detriments on workers taking industrial action. Because it is it is so rare. But of course, we are conscious of employment tribunals on industrial action, he mentioned all the regulations are already in place.
Trade unions are highly, highly, highly, highly regulated already when it comes to their activities, but also when strike action. We've talked a lot about this at pace throughout the Employment Rights Bill passage, as he referenced, and they are highly regulated. And, you know, we want to make sure that workers, of course, do abide by the regulations and the law that is in place as we want employers to do, which is why today's debate is so important.
And that conduct is really important for the good industrial relations that I mentioned briefly before. Finally, he mentioned pay and the impact in common law. And of course, we want to make sure that we can enable that process and lessons been learned and what we can understand and hear that develops in common law as feeding into our work. And particularly on this, I mentioned in my opening remarks about what this will and won't do. So hopefully that has been understood in terms of our intentions of changing that.
But we will, of course, review common law as we always would. And on his response I can only apologise. I will absolutely chase that and make sure you get one in due course. But hopefully, chair, that answers a lot of the questions and discussion of today's debates, and I hope all members can support this really important principle of protecting workers from unfair treatment. If take industrial action. I think if any of our constituents were put in this position, we would want them to have the law behind them and have that support.
So I really hope that colleagues today across the House might support this government legislation today and that this statutory instrument. So it's approved. Thank you. Thank you. Minister. The
We, of course, consulted with business representatives, as we do at length throughout every single stage of the Employment Rights Act, and particularly to gain their views on this guidance, and we will be moving at pace to make sure that employers get that support with the guidance so they can, of course, comply as necessary. But what I would add is that the moment that employers very rarely have to impose detriments, so we don't believe that there will be a significant amount of work for employers to do in terms of the frequency of employers imposing detriments on workers.
Take industrial action. I reference that in my introductory remarks just how rare it is. So in terms of that scale of employers having to really understand the guidance, we don't see that risk as significant. But of course, work to publish as soon as possible and work closely with them as we always do. And he mentioned the frequency of strike action. I would just gently remind him, and unfortunately, the highs under the previous government, 2.5 million and 2.6 million deaths were lost to strike action under the previous government.
And that has increasingly come down. And we want to make sure, alongside all these measures, that we have good industrial relations in this country where employers and businesses and trade unions and government can get round the table, discuss the challenges that we face across this country, as well as those that we face in workplaces. We recognise that not all the time trade unions, their representatives and businesses and employers won't agree on absolutely everything. But it's that good industrial relations and fostering that nature across workplaces, across the country, which is my ambition, this government's ambition.
So we know that often strike action is, of course, the last resort. It's an important right for workers to use that if necessary. But we want to foster that good industrial relations. And that's a really, really key part of not just what we're discussing today, but our wider approach on employment tribunals. This is an issue I've been working on consistently with my colleagues in the Ministry of Justice, recognising that backlog. It's not having helped by the previous government's cuts, unfortunately, where we saw significant increases to the employment tribunal system.
But it suits no one when they don't have access to justice, does it? For workers themselves, for employers who want a system that works for them, can work through cases and have that support and have that ultimate access to justice, it's really important that we get those backlogs down. We've set up a task force with union representatives, business employers, myself and my colleague in the Ministry of Justice, and we've been working at pace since October last year of how we do fundamentally fix the system going forward.
Recognising the pressures and the backlog that we already have to face, as I've said for this particular issue that we are debating today, there have been two cases in recent years relating to detriments, participation in industrial action, and we don't have that availability for frequency of employers imposing detriments on workers taking industrial action. Because it is it is so rare. But of course, we are conscious of employment tribunals on industrial action, he mentioned all the regulations are already in place.
Trade unions are highly, highly, highly, highly regulated already when it comes to their activities, but also when strike action. We've talked a lot about this at pace throughout the Employment Rights Bill passage, as he referenced, and they are highly regulated. And, you know, we want to make sure that workers, of course, do abide by the regulations and the law that is in place as we want employers to do, which is why today's debate is so important.
And that conduct is really important for the good industrial relations that I mentioned briefly before. Finally, he mentioned pay and the impact in common law. And of course, we want to make sure that we can enable that process and lessons been learned and what we can understand and hear that develops in common law as feeding into our work. And particularly on this, I mentioned in my opening remarks about what this will and won't do. So hopefully that has been understood in terms of our intentions of changing that.
But we will, of course, review common law as we always would. And on his response I can only apologise. I will absolutely chase that and make sure you get one in due course. But hopefully, chair, that answers a lot of the questions and discussion of today's debates, and I hope all members can support this really important principle of protecting workers from unfair treatment. If take industrial action. I think if any of our constituents were put in this position, we would want them to have the law behind them and have that support.
So I really hope that colleagues today across the House might support this government legislation today and that this statutory instrument. So it's approved. Thank you. Thank you. Minister. The