Legislation – Employment Rights Act 2025

“Protection against detriment

236ADetriment on grounds of industrial action

(1)

A worker has the right not to be subjected as an individual to detriment of a prescribed description by any 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.

(2)

For that purpose, a worker takes protected industrial action if the worker commits an act which, or a series of acts each of which, the worker is induced to commit by an act which by virtue of section 219 is not actionable in tort.

(3)

But no account may be taken of the repudiation of any act by a trade union as mentioned in section 21 in relation to anything which occurs before the end of the next working day after the day on which the repudiation takes place.

(4)

Regulations under subsection (1) may prescribe detriment of any description (instead of detriment of a specific description).

(5)

Subsection (1) does not apply where the worker is an employee and the detriment in question amounts to dismissal (but see sections 237 to 239).

(6)

A worker or former worker may present a complaint to an employment tribunal on the ground that the worker or former worker has been subjected to a detriment by an employer in contravention of this section.

(7)

A worker or former worker has no other remedy for infringement of the right conferred by this section.

(8)

In this section and sections 236B to 236D—

“employer” means—

(a)

in relation to a worker, the person for whom the worker works;

(b)

in relation to a former worker, the person for whom the former worker worked;

“worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1);

“working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.

236BTime limit for proceedings

(1)

An employment tribunal may not consider a complaint under section 236A unless it is presented—

(a)

before the end of the period of six months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them, or

(b)

where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

(2)

For the purposes of subsection (1)—

(a)

where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

(b)

a failure to act is to be treated as done when it was decided on.

(3)

For the purposes of subsection (2), in the absence of evidence establishing the contrary, an employer is to be taken to decide on a failure to act—

(a)

when the employer does an act inconsistent with doing the failed act, or

(b)

if the employer has done no such inconsistent act, when the period expires within which the employer might reasonably have been expected to do the failed act if it was to be done.

(4)

Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).

236CConsideration of complaint

On a complaint under section 236A it is for the employer to show what was the sole or main purpose for which the employer acted or failed to act.

236DRemedies

(1)

Where the employment tribunal finds that a complaint under section 236A is well-founded, the tribunal—

(a)

must make a declaration to that effect, and

(b)

may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of.

(2)

The amount of the compensation awarded is to be an amount which the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the act or failure.

(3)

The loss is to be taken to include—

(a)

any expenses reasonably incurred by the complainant in consequence of the act or failure, and

(b)

loss of any benefit which the complainant might reasonably be expected to have had but for the act or failure.

(4)

In ascertaining the loss, the tribunal must apply the same rule concerning the duty of a person to mitigate loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5)

Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it must reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.”