The Government has confirmed that it intends to introduce regulations prohibiting employers from imposing any detriment for the sole or main purpose of penalising, preventing, or deterring a worker from taking industrial action.

As we previously discussed (here), a consultation was launched earlier this year on implementing new protections in the Employment Rights Act 2025 that prevent workers suffering detriment as a result of taking industrial action.

Section 76 ERA inserts a new section 236A into the Trade Union Labour Relations (Consolidation) Act 1992, providing that:

“A worker has the right not to be subject as an individual to detriment of a prescribed description by an act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so”.

The new provision enables the Government to make regulations either to (a) prohibit all detriments for taking industrial action or (b) create a list of detriments that are prohibited.

In the consultation document, the Government indicated that its preferred option was to prohibit all detriments, whilst acknowledging that the concept of ‘detriment’ in case law is wide and such an approach could limit options available to employers to manage industrial action. This concern was indeed expressed in the responses to the consultation, as most employers worried that prohibiting all detriments could significantly restrict their ability to make routine or necessary business decisions during periods of industrial action. Furthermore, the Government’s response states that concerns were expressed about risks of vexatious claims and a “culture of fear” in which “employers would feel the need to delay or avoid legitimate business, disciplinary or performance decisions”, as well as a general sense that since detriments are rarely used in practice, broad protections were unnecessary.

Despite these concerns, the majority of respondents to the consultation nevertheless supported prohibiting all detriments for taking industrial action, citing a preference for greater clarity, broader protections for workers, and effective safeguards against employers who might seek to bypass the legislation if only certain detriments were prohibited.

Ultimately, the Government has decided to proceed with its preferred approach, explaining that it “will enable trust and stronger relations to be built between employers and workers”. In practice, this means that employers will need to take particular care when making decisions affecting workers participating in protected industrial action, even where those decisions would ordinarily be regarded as routine management, disciplinary or performance decisions.

The regulations are due to come into force in October 2026. To read the Government’s response in full, click here.