Employers will need to take greater care when making decisions that affect workers who have taken protected industrial action. From 30 October 2026, workers will have wider statutory protection against detriment where the employer’s sole or main purpose is to prevent, deter or penalise participation in protected industrial action.
The government has published both its response to the consultation on the new protection from detriment for workers taking protected industrial action and draft regulations. It has also published its response to the consultation on the draft Code of Practice on electronic and workplace balloting and laid the updated Code before Parliament.
For employers, the expansion of detriment protection is the more significant development. The reforms sit alongside a related change to redundancy law and reforms to trade union balloting as part of the government’s broader programme of industrial relations reforms.
A broader approach to protection from detriment
The Employment Rights Act 2025 (ERA 2025) paved the way for a new right protecting workers from detriment for taking protected industrial action. This protection addresses a gap in the relevant legislation identified by the Supreme Court in 2024. The ERA 2025 left the detail of the protection to be set out in regulations and the government consulted on two possible approaches. One option was to prohibit a prescribed list of detriments. The other was to prohibit any detriment imposed for the purpose of preventing, deterring or penalising participation in protected industrial action.
The draft regulations adopt the broader approach and prohibit any detriment where the employer’s sole or main purpose is to:
- prevent a worker from taking protected industrial action;
- deter a worker from taking part in protected industrial action; or
- penalise a worker for having done so.
According to the government, this approach gives workers greater protection, reduces the scope for technical loopholes and aligns with the way detriment protection already operates in other areas of employment law.
Subject to Parliamentary approval, the regulations are due to come into force on 30 October 2026. They also give tribunals the power to increase or reduce compensation by up to 25% where there has been an unreasonable failure to comply with a relevant statutory code of practice, such as the Acas Code of Practice on Disciplinary and Grievance Procedures.
What does this mean in practice?
The regulations leave it to employment tribunals to determine, on the facts of each case, whether a worker has suffered a detriment. In practice, the focus is likely to be on the employer’s reason for acting, rather than the particular type of action it took.
Depending on the circumstances, a detriment could include disciplinary action, decisions affecting promotion or training opportunities, changes to duties or other treatment that places a worker at a disadvantage because they participated in protected industrial action. A decision will not be unlawful simply because it affects a worker who has taken industrial action. The key issue will be why the employer made the decision and whether the evidence supports a legitimate business reason.
During the consultation, organisations expressed concern that a broad prohibition could create uncertainty and make routine management decisions more vulnerable to challenge. The government acknowledged those concerns but concluded that employers already operate under comparable legal tests in relation to other statutory trade union protections. It indicated that updated guidance will accompany the new regulations.
No change to “no work, no pay”
One of the most closely watched issues during the consultation was whether the new protection from detriment would affect an employer’s ability to withhold pay during industrial action. The government has confirmed that it will not.
The draft regulations confirm that the existing position remains unchanged. A proportionate deduction from pay where a worker takes protected industrial action will not amount to a detriment. Accordingly, the long-established principle of “no work, no pay” continues to apply and employers may continue to make proportionate deductions from pay where employees participate in strike action or action short of a strike.
Redundancy protection also extended
The government has also published draft regulations making a related amendment to redundancy protection. Employees are already protected where the reason, or principal reason, for their dismissal is that they took protected industrial action. The draft regulations extend that protection to redundancy selection.
Once the amendment takes effect, it will be automatically unfair to select an employee for redundancy where the reason, or principal reason, for their selection is participation in protected industrial action, which started on or after 18 February 2026.
Although this amendment is relatively limited, it brings the redundancy provisions into line with the wider statutory protection against dismissal. It also means employers should take particular care with redundancy exercises that follow industrial action, including the choice of pools, selection criteria, scoring and decision-making records.
Electronic and workplace balloting
The government has also finalised the Code of Practice on electronic and workplace balloting and laid it before Parliament alongside the necessary regulations.
From August 2026, trade unions will be able to use secure electronic voting alongside postal voting for most statutory ballots, including industrial action ballots and union election or merger ballots. The reforms will not initially apply to statutory recognition or derecognition ballots. Unions will also be able to use workplace ballots for industrial action ballots, with further reforms expected during 2027 to extend electronic voting to statutory recognition and derecognition ballots.
These changes will modernise trade union ballot procedures. However, for most employers, the broader detriment protection is likely to have more immediate impact on day-to-day employee relations and management decisions.
Practical steps for employers
Before the new detriment regulations come into force on 30 October 2026, employers should consider how existing procedures would operate under the wider protection. In particular, consider:
- reviewing disciplinary, performance management and related workplace procedures to ensure decisions are supported by legitimate business reasons;
- ensuring managers understand the wider protection from detriment and can recognise situations where an employment decision may appear connected to industrial action;
- maintaining clear records of decisions affecting workers who have participated in protected industrial action and the reasons for those decisions; and
- reviewing redundancy selection processes, criteria and audit trails where industrial action has taken place or is anticipated.
The practical message is not that employers cannot manage workers who have taken protected industrial action. They can. However, they should ensure that they have legitimate reasons for any action they take and avoid any suggestion that the purpose was to prevent, deter or penalise participation in industrial action.
