Benjamin Morais & Ors v Ryanair DAC

The prohibition on blacklisting trade-union participants in the Employment Relations Act 1999 (Blacklists) Regulations 2010 includes employees who take part in industrial action organised or endorsed by a trade union. The exclusion of industrial action from comparable protection under the Trade Union and Labour Relations (Consolidation) Act 1992 is confined to unfair-dismissal provisions whose statutory context includes an appropriate-time requirement and a separate regime governing dismissal during industrial action.

Official industrial action need not satisfy every balloting or immunity requirement in Part V of the 1992 Act. An employer that unsuccessfully challenged a ballot by injunction, abandoned that litigation and did not appeal or proceed to trial may be barred by abuse of process from reopening the ballot’s lawfulness in later claims.

The claimants were pilots employed by Ryanair and members of BALPA. After BALPA organised strike action in a pay and conditions dispute, Ryanair withdrew discretionary travel benefits from pilots who participated. The employment tribunal held that the claimants were taking part in trade-union activities and that the Blacklisting Regulations applied. It also held that Ryanair’s employee record identifying strikers constituted a prohibited list.

The Employment Appeal Tribunal upheld the finding concerning trade-union activities and held that Ryanair could not rely on the alleged unlawfulness of the strike ballot. Ryanair appealed to the Court of Appeal. Following the Supreme Court’s decision in Mercer, the section 146 claim was dismissed by consent. The remaining issues were whether industrial action fell within regulation 3(2)(a), whether compliance with Part V of the 1992 Act was required, and whether relitigating the ballot’s lawfulness was an abuse of process.

1. The appeal was dismissed. The claimants’ substantive claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 had already been dismissed by consent following Mercer.
2. Regulation 3(2)(a) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 must be given its ordinary meaning. The activities of trade unions include participation in industrial action organised or endorsed by a trade union. The reasoning in Drew v St Edmundsbury Borough Council [1980] ICR 513 and Mercer concerned the different statutory context of unfair-dismissal protection. In that context, the appropriate-time requirement and the interaction between sections 152, 237, 238 and 238A of the 1992 Act meant that trade-union activities could not include industrial action. That reasoning did not control the Blacklisting Regulations, which contain no equivalent qualification.
3. Industrial action must be official in the sense that it is organised or endorsed by the union under its rules. However, the Regulations do not require compliance with all the balloting and related requirements in Part V of the 1992 Act, or entitlement to the immunity in section 219, before the activity can fall within regulation 3(2)(a).
4. Ryanair’s attempt to relitigate the lawfulness of the ballot was an abuse of process of the Henderson v Henderson type. There was probably no formal issue estoppel because the parties to the High Court proceedings were not identical. Nevertheless, Ryanair had applied for an injunction, failed on the merits, did not appeal, and abandoned any trial. It could not reopen the same technical objections in the employment claims.
5. As an additional observation, the Court considered Lambert J’s rejection of the ballot challenge convincing, including her reliance on P v NASUWT [2003] UKHL 8. That observation was unnecessary to the abuse-of-process conclusion.

• Court of Appeal (Civil Division) — dismissed Ryanair’s appeal concerning the Blacklisting Regulations: [2025] EWCA Civ 19.
• Employment Appeal Tribunal — on 18 November 2021 upheld the finding that participation in the strike was participation in the activities of an independent trade union and held that Ryanair could not relitigate the ballot’s lawfulness.
• Employment Tribunal — on 4 January 2021 held that the claimants were taking part in trade-union activities, that the Blacklisting Regulations applied, and that the employee record identifying strikers was a prohibited list.