Top tips on preparing for trade union changes under the Employment Rights Bill

With the Labour Government’s Employment Rights Bill (ERB) swiftly making its way through Parliament, Partner David Morgan considers the anticipated changes we are likely to see from the ERB, as they relate to trade unions and industrial relations in the UK.

Industrial action

If the ERB is implemented, we are likely to see an unravelling of most of the previous Government’s tighter rules regulating industrial action through the Trade Union Act 2016. 

In respect of industrial action ballots, currently, the law requires at least 50% of trade union members entitled to vote to turn out and vote for the ballot to be valid. The ERB will amend the turnout and support thresholds, which means that the law will revert to requiring a simple majority of those members voting in a ballot to be in favour of industrial action for the ballot to be successful, and with no requirements for any specific level of turnout. The 40% turnout requirement for important public services will also be removed.

The 50% minimum threshold turnout was introduced by the previous administration to make ballots more democratic. 

Abolishing the minimum threshold turnout and requiring a simple majority of those who turn out to vote to support the ballot can lead to quite extreme scenarios. For example, where there is a workforce with 1,000 staff members but low density in union membership, you might find that there are 1,000 employees affected in a collective bargaining unit, but only, say, 100 union members. It is the union members with the right to vote so, if only 50 out of 100 then turn out to vote, and only a simple majority is required, only 26 people voting in favour of industrial action will be sufficient for industrial action to take place. 

The information that must be included on the voting paper in a ballot is to be significantly reduced and simplified too. Currently, certain information must be included on the voting paper including a summary of matters in dispute and when industrial action is expected to take place. Under the ERB changes, the only information required to be included on the voting paper will be to ask which type of industrial action members want to take part in i.e. strike or action short of a strike. The removal of extra information can be seen as controversial. In 2017, when the requirement for more detail on ballot papers was introduced, it was useful to know more about what members were being asked to vote on. The new provision takes it back to basics, but this could be seen as a retrograde step for union members and employers alike who want to take an informed choice on something as important as a strike. 

The Government has also committed to introducing the use of electronic voting for trade union ballots which will be a welcome addition for unions as the current position is that members can only vote by post. There is a working group to be formed by the Government to take this forward to make it easier for votes to be cast. 

In respect of the period of notice to be given to an employer to notify it of industrial action, this will be reduced from 14 to seven days. Losing seven days in this process will have an effect on employers, for example, in carrying out business continuity plans. However, there will still be a few weeks between the initial notification of intention to ballot through to the ballot period itself. In respect of picketing, lawful picketing will no longer be dependent on the union supervision requirements set out in the current legislation which will be repealed. 

In respect of picketing, lawful picketing will no longer be dependent on the union supervision requirements set out in the current legislation which will be repealed.  

In addition, workers will be provided with protection against detriment for taking part in official and protected industrial action. Employees will also be protected against dismissal for taking part in industrial action for the length of the strike action by removing the current 12-week protected period.

The Strikes (Minimum Service Levels) Act 2023, which introduced minimum service levels during industrial action in key sectors such as health services, education and transport, will also be repealed and this change will come into force on royal assent.

Statutory union recognition

The Government believes that the current process makes it too difficult for a union to gain recognition. The law here will be relaxed. This doesn’t mean an absolute right to recognition, there will still be a requirement for threshold levels of support. The proposed changes in the ERB would lower the hurdles of the process for statutory recognition. This includes:

• plans to remove the requirement for the union to demonstrate at the Central Arbitration Committee (CAC) application stage that at least 50% of workers in the bargaining unit are likely to support recognition. Removing this requirement at the outset means that all the union must do is evidence at least 10% of workers in a bargaining unit are members, which is usually easy to do;
• plans to remove the 40% support threshold at the recognition ballot stage. Once an application is admissible and comes to a vote, the ERB is proposing that a union will only need a simple majority of those who turn out to vote to be in favour of recognition. This could make it much easier for a ballot to be successful and recognition imposed; 
• the Secretary of State will be given the power to reduce the requirement to show at the CAC application stage that at least 10% of workers in the bargaining unit are members of the union (down to as low as 2% of the bargaining unit). In practice, it can be easy to get the 10% membership, so unions might widen their proposed bargaining unit if they only need 2% membership.

Trade union laws

The ERB also contains several other measures relating to trade union law, including:

• creating a framework for access agreements between employers and trade unions. This will provide a right of access to workplaces for trade unions along with an enforcement framework for trade union access to the workplace, allowing cases to be referred to the CAC for arbitration. For unrecognised unions, this is designed to be an opportunity to recruit and organise within a workplace with the aim of gaining recognition. This enables unions to have access to the workforce, to enter and talk about unionisation. If parties do not agree the arrangements, the CAC will step in. This is a big move as unions currently have no such right. The real change here is that workers will be able to hear the message of the union activists on employer premises.
• employers will have to tell the workers about their right to join a trade union in their statement of terms and conditions of employment.
• strengthening the existing right to reasonable paid facility time for union representatives to carry out their duties by establishing a presumption that the employee’s view on what is considered reasonable time off is reasonable.

Top tips

• Upskill managers to understand trade unions and their rights
• Provide training on new trade union laws to HR and leadership
• HR/leadership – listen and understand the drivers for recognition from trade union members/activists

• Know your employees’ rights and the rights of trade union members
• Understand the concepts of collective bargaining, industrial action, recognition and how it could happen
• Look out for early warning signs of potential industrial action and pre-emptive steps to gain union recognition
• Take specialist legal advice to ensure that as an employer you understand the legal obligations in this area. 

Some of these changes may come sooner rather than later as several of them are due to come into force two months after the ERB receives royal assent. Although the Government has stated that it anticipates that the majority of changes to be introduced under the ERB will not come into force sooner than 2026, it is possible that the ERB could receive royal asset at some point this year and some of the existing rules on industrial action contained in the Trade Union Act 2016 could be repealed sooner.

How we can help

Our team of experienced employment lawyers can help your organisation effectively prepare for potential industrial action and take active and pre-emptive steps to get the workplace ready for new government changes. For further information, please contact David Morgan.

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