Benjamin Morais & Ors v Ryanair DAC

The Court of Appeal dismissed Ryanair's appeal. The court held that the phrase "activities of trade unions" in regulation 3(2)(a) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 bears its ordinary meaning and includes participation in industrial action organised or endorsed by a trade union. The court rejected the submission that the materially identical phrase in the Trade Union and Labour Relations (Consolidation) Act 1992 (s146) required the same restricted meaning for the Regulations. Regulation 3 contains no qualifying phrase "at an appropriate time" and thus does not import the limits applied in the unfair dismissal context by Drew and by Mercer. The court also held that the Regulations do not require proof that the union complied with all balloting or Part V requirements before industrial action counts as a trade union activity for the Regulations' purposes.

The court further found that Ryanair was barred by abuse of process from re‑litigating the lawfulness of the ballot after the company had pursued and then discontinued High Court proceedings before Lambert J which had been decided against Ryanair on the merits.

Background and parties:

• The claimants are Ryanair pilots and members of BALPA. BALPA notified a ballot and organised discontinuous strike action in 2019. Ryanair sought an interim injunction in the High Court to restrain the industrial action; Lambert J refused the injunction and Ryanair discontinued its claim and paid BALPA's costs.
• Ryanair then withdrew discretionary travel benefits from pilots who participated in strike dates. The pilots brought claims in the employment tribunal alleging detriment under s146 of the 1992 Act and, alternatively, that Ryanair had compiled or used a "prohibited list" in breach of regulation 3(2) of the Blacklisting Regulations.

Procedural history:

• The employment tribunal found that the pilots' strike participation constituted trade union activities for the purposes of Regulation 3 and that an "own use" employee record identifying strikers amounted to a prohibited list. Ryanair appealed to the Employment Appeal Tribunal which upheld the tribunal's interpretation of the Regulations and the abuse of process finding. Permission to appeal to this court was granted. The wider question of protection under s146 was affected by the Mercer litigation (EAT, Court of Appeal and Supreme Court), which resulted ultimately in the claim under s146 being dismissed by consent.

Relief sought and issues:

• The pilots sought remedies for detriment and breaches of the Blacklisting Regulations (prohibition on compiling, using or supplying prohibited lists). The Court of Appeal considered three issues: (1) whether "activities of trade unions" in regulation 3(2)(a) includes industrial action; (2) whether the Regulations require industrial action to comply with Part V (ballot/notice/immunity) to fall within that phrase; and (3) whether Ryanair was precluded by issue estoppel or abuse of process from relitigating the lawfulness of the ballot decided by Lambert J.

Court's reasoning:

• The court accepted that the ordinary meaning of "activities of trade unions" includes organising industrial action. Drew (and Mercer in the unfair‑dismissal context) established a limited principle: for purposes of unfair dismissal statutes a distinction was required to avoid overlap between provisions protecting trade union activities and those governing industrial action. That logic, the court held, does not require importing the same limitation into the Blacklisting Regulations, which use different wording and contain no qualifying phrase such as "at an appropriate time".
• Section 3(6) of the Employment Relations Act 1999 did not compel Ryanair's narrower construction. Departmental consultation materials and guidance contemporaneous with the Regulations supported the ordinary meaning that official industrial action is covered. The court therefore refused to read into Regulation 3 a requirement of compliance with Part V balloting rules.
• On abuse of process the court concluded that Ryanair, having pursued and lost an interlocutory challenge to the ballot in the High Court and then discontinued the litigation, could not fairly be permitted to relitigate the validity of the ballot in this forum; Lambert J had determined the ballot points on the merits and Ryanair did not appeal.

Appeal dismissed. The court held that regulation 3(2)(a) of the Blacklisting Regulations covers participation in industrial action organised or endorsed by a trade union; the Regulations do not import the "at an appropriate time" restriction or a requirement of compliance with the balloting/Part V requirements of the 1992 Act; and Ryanair was prevented by abuse of process from re‑raising the lawfulness of the ballot after losing before Lambert J and discontinuing its High Court claim.

Appeal from the Employment Appeal Tribunal (Judge Auerbach) EA-2021-000275. Employment Tribunal decision delivered 4 January 2021. EAT reserved judgment on aspects and gave judgment 18 November 2021 upholding the tribunal's Blacklisting Regulations finding; permission to appeal to the Court of Appeal was granted. The decision was stayed pending the Mercer litigation (EAT [2021] ICR 1598; CA [2022] ICR 1034; Supreme Court judgment 17 April 2024 as described in the judgment). The present judgment: [2025] EWCA Civ 19.