What’s happening?
In October 2024, the government began several 6-week consultations as part of its plan to Make Work Pay. On 4 March, the Government published its responses and confirmed several key amendments to the Employment Rights Bill (ERB). As a reminder, the ERB is still subject to parliamentary approval and is estimated to come into force at some point in 2026 so we will provide further updates when this happens.
This article is part of a mini-series where we are exploring the government’s recent responses to the various ERB consultations. You can find our other articles in the series here:
- Make Work Pay – Statutory Sick Pay
- Make Work Pay – Collective Redundancy & Fire and Rehire
- Make Work Pay – Umbrella Companies
- Make Work Pay – Zero Hour & Agency Workers
However, in this article we are focussing on some of the key changes being made to the ERB in relation to Trade Unions.
Why is this important?
Overall, the proposed amendments make it easier for unions to achieve recognition, access workplaces and organise industrial action. Whilst only time will tell if union recognition increases in the general employer population, the changes will undoubtedly increase the bargaining power that unions have when negotiating with employers. We have highlighted just some of the key changes below.
Rights of Trade Unions to Access Workplaces
These proposed amendments give unions greater ability to access employers’ environments by:
- expanding access agreements to include access to employers’ digital workplaces (e.g. staff intranet);
- giving the CAC a framework to issue fines for non-compliance with access agreements; and
- setting a maximum of 20 working days from acceptance of a recognition ballot for employers and trade unions to agree access agreements before someone in the CAC can make an access order.
Making Claims for Unfair Practice Easier
- The proposed amendments will also make it easier for unions to win claims of unfair practice (i.e. claims that someone has used unfair methods to try and influence a ballot result), increasing the chance of litigation in this area. The amendments achieve this by:
- extending the time limit for unions to submit claims from 1 to 5 days (running from closure of the ballot);
- removing the second limb of the CAC’s statutory test for unfair practice so that complainants only have to show that unfair practices have occurred and don’t need to show how the practice influenced workers’ votes; and
- extending the Code of Practice to cover the entire recognition process from the point the CAC accepts the application (rather than just after the CAC decides the ballot should be held).
Simplifying Information in Ballots & Notices
The proposed amendments also simplify the information requirements for industrial action ballots and notices and the government will further consider the use of e-balloting. These changes are designed to streamline the ballot process and make participation easier for workers.
In some welcome news for employers, the government has said it will be increasing the notice required to be given to employers of industrial action from 7 days (as drafted) to 10 days. However, many employers will feel this doesn’t go far enough.
Extending Union Mandates
Currently, industrial action must take place within 6 months of a ballot to be valid, with unions having to re-ballot if they miss this date. The proposed amendments will increase this mandate to 12 months, arguably giving unions more bargaining power in negotiations and flexibility as to when to strike.
The amendments will also make it easier for such ballots to be passed in the first place as the government is repealing the requirement for at least 50% of eligible members to respond to a ballot for it to be valid (to come into force at an unspecified later date). It is not yet clear what, if any, lower threshold it will be replaced by but the government intends to make the change in line with the introduction of e-balloting so we will undoubtedly have further debate on this in due course.
What should you do?
Stay Tuned: These amendments are still subject to consultation. We will continue to update you of amendments as we receive them and will confirm the final position when the ERB is officially passed.
Prepare: Review how the changes may impact your business and consider whether you will need to update any policies or current access arrangements with unions.
Advice: If you require advice relating to these changes or the ERB in general, please contact [email protected] who can put you in touch with one of our specialist employment lawyers.
Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
