Employment Rights Bill: Trade unions

Within the Employment Rights Bill the government have released various factsheets to support employers in understanding some of the proposed changes. In this article, we’ll look at the changes to Trade Union activities and laws. You can also find the specifics here.

Key changes include:

• The Trade Union Act 2016 and Strikes (Minimum Service Levels) Act 2023 will be repealed, easing thresholds for industrial action and reducing administrative burdens.
• Strengthened rights for union representatives to reasonable paid time off and access to workplace facilities, guided by ACAS Codes of Practice.
• Expanded to include lists generated by AI and third-party compilers, even if not originally intended for discriminatory use.
• Workers will be protected from unfair dismissal regardless of strike duration, with employers required to justify dismissals unrelated to industrial action.
• A formalised process for unions to request workplace access, with enforcement and penalties managed by the Central Arbitration Committee (CAC).
• Employers must inform all workers of their right to join a union, alongside existing employment particulars.
• Lower thresholds and streamlined procedures for union recognition, with new protections against unfair practices and mass recruitment tactics.
• Removal of 10-year review ballots; new members automatically opted in with the right to opt out.
• Reduced reporting requirements for unions, easing compliance.

Key implications for employers

1. Employers must review and update internal policies to reflect new rights around facility time, union access, and equality representation.
2. Lower thresholds for recognition and industrial action may lead to increased union engagement and activity in the workplace.
3. HR teams and line managers will need training on the new rights and obligations, particularly around facility time, access requests, and the new statement of union rights.
4. Employers must ensure timely and accurate communication of union rights to all workers and maintain compliance with new documentation requirements.
5. With simplified strike procedures and stronger protections for industrial action, employers may face more frequent or prolonged disputes and should prepare accordingly.
6. Non-compliance with new access frameworks or facility time obligations could result in CAC penalties or tribunal claims.
7. Employers may need to provide digital access (e.g. intranet, meeting platforms) to union representatives, requiring IT and facilities coordination.

Detailed analysis

Repeal 2016 Trade Union Act & Repeal of Strikes (Minimum Service Levels) Act 2023

This act currently allows for various restrictions, which this bill will repeal. These changes will be brought in to replace the existing legislation. Under the new rules, members who join a trade union will automatically be enrolled to contribute to the political fund, unless they specifically choose to opt out. This change simplifies the process and assumes support unless stated otherwise.

Trade unions will no longer be responsible for covering the administrative costs of the check-off system in the public sector, easing financial burdens on unions. Public sector employers will also no longer be required to publish details about the amount of facility time taken by union officials. Additionally, the authority to impose limits on facility time has been removed.

Certain reporting obligations related to industrial action have been lifted. Trade unions are no longer required to provide extra information on voting papers, nor must they report this to members, employers, or the Certification Officer in their annual returns. To lawfully proceed with a strike or other industrial action, trade unions will now only need a simple majority of those who vote in the ballot to support the action.

The previous requirement for 40% support in strike ballots for six key public services – fire, health, education, transport, border security, and nuclear decommissioning – has been removed, making it easier to take industrial action in these sectors. Unions will no longer be required to appoint a supervisor or meet other specific obligations when organising picketing, reducing administrative complexity.

The requirement to consult and publish a review on electronic balloting has been removed. The Government has committed to introducing secure electronic balloting for statutory union ballots, and will work with stakeholders including cyber security experts, trade unions, and business representatives to support its rollout following Royal Assent of the Employment Rights Bill.

The Certification Officer will no longer have powers to investigate trade unions based on third-party complaints or on their own initiative. They will also lose the ability to demand documents, appoint inspectors, impose financial penalties, or issue declarations regarding annual return requirements introduced by the Trade Union Act 2016. However, they will retain the authority to investigate financial matters under earlier legislation.

Finally, the obligation for trade unions and employers’ associations to pay a levy to the Certification Officer has been removed, further reducing financial obligations.

Access to facilities & facility time

The existing right to reasonable paid facility time for union representatives will be strengthened. A new presumption will be introduced that an employee’s view of what constitutes reasonable time off is, in all the circumstances, to be treated as reasonable. This will be assessed with reference to an ACAS Code of Practice, and it will be for the employer to demonstrate to a tribunal that the time off was not reasonable.

Employers will be required to provide union representatives, who are permitted to take time off as needed, with access to appropriate facilities – such as office and meeting space, and internet or intranet access – as is reasonable in the circumstances. This requirement will also be guided by any relevant provisions in an ACAS Code of Practice, to support representatives in carrying out their duties or undertaking training.

A new statutory right will be introduced for trade union equality representatives to take reasonable time off during working hours, with reference to an ACAS Code of Practice, for specific purposes related to promoting workplace equality. These purposes include promoting the value of equality in the workplace, arranging or delivering learning and training on equality matters, and providing information, advice, or support to qualifying union members on equality issues. Equality representatives will also be entitled to consult with the employer on equality matters, obtain and analyse information on the state of equality in the workplace, and prepare for any of the aforementioned activities.

These rights will apply only if the trade union has notified the employer in writing that the employee is an equality representative and has received sufficient training to carry out the relevant activities. Alternatively, the rights will apply if the union has given written notice that the employee will undergo such training, and within six months, the employee has completed the training and the union has confirmed this in writing to the employer.

Blacklisting

The Bill extends the scope of the blacklisting legislation by amending the Employment Relations Act 1999, so that further protections can be delivered by secondary legislation and guidance. Currently lists are prohibited if they are prepared for the purposes of discrimination. This Bill will extend prohibitions to lists that are not prepared for the purposes of discrimination, but that are subsequently used for that. The Government will then bring forward secondary legislation and guidance to make it clear that blacklisting prohibitions extend to lists created by predictive technology such as AI.

By removing references to employers or employment agencies within the blacklisting legislation, they bill will widen the scope of the existing power so that regulations can be made to strengthen protections in relation to third parties compiling blacklists, for example, those who do not have a direct employment relationship with the individual being blacklisted.

Blacklisting protections already exist in:

• The Employment Relations Act 1999 (Blacklists) Regulations 2010
• Trade Union and Labour Regulations (Consolidation) Act 1992
• Data Protection

Protection for taking industrial action

The Employment Rights Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992. It provides that a worker has the right not to be subjected, as an individual, to a prescribed detriment by an act – or any deliberate failure to act – by their 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.

The prescribed detriment(s) will be set out in secondary legislation following consultation, to take place after Royal Assent of the Bill. The Bill also removes the 12-week cap that an employee is protected for when taking industrial action, where the reason for the dismissal is taking protected industrial action.

Employees will now be protected regardless of the length of the strike action against unfair dismissal when taking protected industrial action. Should the employer wish to dismiss an employee during long-running protected industrial action, the dismissal would have to be for reasons other than participating in industrial action, and the employer will need to be able to demonstrate this.

The Government will consult on what should be prescribed as a detriment. The power in the Bill enables the Secretary of State to prohibit all detriments in secondary legislation should that be the preferred approach following consultation.

Trade Unions Right of Access

The Employment Rights Bill introduces a structured framework outlining how a qualifying trade union may request access to a workplace. This approach is designed to strike a fair balance between the interests of both employers and unions.

To initiate the process, the union must submit a request containing specific information in a prescribed format, which will be defined through secondary legislation following consultation. Upon receiving such a notice, the employer has the option to either agree to or object to the request.

If both parties reach an agreement on the terms of access, the Central Arbitration Committee (CAC) is notified to formally record the agreement and proceed accordingly. However, if no agreement is reached within a specified timeframe, either party may refer the matter to the CAC for a decision.

The CAC will have discretion in determining whether access should be granted, guided by principles set out in the Bill that aim to consider the needs of both employers and unions. The Chair of the CAC will decide whether the case should be heard by a tripartite panel – comprising a union representative, an employer representative, and the Chair or Deputy Chai – or by a single person, depending on the complexity of the case.

In assessing complexity, the Chair must also consider whether the proposed access agreement aligns with prescribed terms, which will be detailed in secondary legislation after consultation. If the CAC rules in favour of union access, it will specify the terms under which access is to be granted.

All CAC determinations must comply with secondary legislation provisions concerning the terms and conditions under which access must or must not be granted. Importantly, this new framework will not affect any existing voluntary access agreements between unions and employers.

Finally, private dwellings are explicitly exempt from these access provisions, and further exemptions will be outlined in secondary legislation following consultation.

Right of Access agreements will have the following proposed enforcement mechanism:

• A party complains to the CAC about a breach of access agreement or interference by a third party.
• The CAC can then vary the agreement, declare the complaint well-founded or not, and issue orders for specified steps to be taken to ensure compliance.
• If a well-founded complaint is made and the action is repeated within 12 months, and a subsequent complaint is made, or the order is breached, the CAC can again declare the complaint well-founded and may order a penalty, payable to the CAC (who pay it to the Consolidated Fund).
• The penalty would be subject to a maximum, a minimum, and can be tied to various metrics, such as the liable party’s annual turnover. These will be set in secondary legislation, following consultation.
• Appeals on CAC determinations, declarations, or penalty orders can be made to the Employment Appeal Tribunal (EAT).

Secondary legislation and guidance will be needed following consultation. This will detail how digital access will work in practice.

Right to Statement of Trade Union Rights

The act will introduce a new duty on employers, requiring them to provide their workers with a written statement informing them of their right to join a trade union. Employers will also be required to communicate this information to all workers on a prescribed basis. This statement will be issued alongside the written particulars of employment that employers are already obliged to provide to new employees under section 1 of the Employment Rights Act 1996.

The specific details of this requirement – including the format, frequency, and method of communication – will be outlined in secondary legislation following a consultation process.

The prescribed information may include a reference to the rights granted under Part 3 of the Trade Union and Labour Relations (Consolidation) Act 1992.

These rights relate to being, or potentially becoming, a member of a trade union. They will adopt the existing enforcement mechanism for failure to provide the written statement of employment particulars, as set out in Section 38 of the Employment Act 2002. 

Simplifying the Trade Union Recognition process

The Bill introduces amendments to the existing statutory recognition process. Firstly, it removes the current requirement for trade unions to secure the support of at least 40% of the workforce within the proposed bargaining unit during a recognition ballot. Going forward, unions will only need to achieve a simple majority of those who vote in order to be successful.

Additionally, the Bill removes the requirement for a union to demonstrate to the Central Arbitration Committee (CAC) that they are likely to win a recognition ballot when submitting an application. Instead, unions will simply need to show that they have 10% membership within the proposed bargaining unit for their application to be accepted by the CAC.

Furthermore, the Bill grants Ministers the authority to issue affirmative secondary regulations to vary the 10% membership threshold required for applications. These variations must fall within the parameters of 2% to 10%, as specified in the legislation.

Following consultation, reforms are also being introduced concerning access and unfair practices during the recognition process. These changes will broadly apply to derecognition processes as well. The legislation and accompanying Code of Practice on access and unfair practices will now extend from the point at which the CAC accepts a trade union application. A clear timetable for negotiations on access will be established, allowing 20 working days from the CAC’s acceptance of the application. If no agreement is reached within this period, the CAC will have 10 working days to determine a reasonable access arrangement.

In cases where unfair practices are alleged, complaints may be submitted to the CAC within five working days following the close of the recognition ballot. The process for resolving such complaints will be simplified, requiring the CAC only to determine whether an unfair practice occurred, without needing to assess its impact.

Additional reforms are also being implemented. These include measures to address mass recruitment into a bargaining unit intended to dilute union membership. Specifically, any new recruits following the submission of a recognition application to the CAC will not be considered for the purposes of the recognition process and will not be entitled to vote in the recognition ballot. Moreover, the Bill prevents the recognition of a non-independent union from obstructing a subsequent recognition application by an independent union, particularly in response to a request for voluntary recognition.

The membership threshold will be determined by the union, only needing to demonstrate on application to CAC that it has reached 10% membership within the proposed bargaining unit.  Minister’s will also consider if the 10% should be reduced to 2% and put these powers in secondary legislation.

The union recognition ballot will only require the unions to obtain a simple majority in the recognition ballot, making entry to employers simpler for them.

Political funds review ballots

Currently trade unions are prohibited from using their general union funds for political purposes.  Trade unions will still be required to hold a members’ ballot on establishing a political fund, but 10- year ballots on the question of maintaining this fund will no longer be required. Funds will remain in place indefinitely, unless closed by a trade union in line with their stated internal procedures. While the repeal of the Trade Union Act 2016 means that new members will be automatically opted in to a union’s political fund, members will continue to be free to choose to opt out.

Simplifying industrial action and ballot notices

This bill will simplify the information requirements for unions to provide employers by removing the requirements for unions to provide employers with the following:

• Section 226A (Notice of Ballot)
  • The total number of employees in each of the categories of workers being balloted;
  • The number of workers concerned at each workplace;
  • An explanation of how these figures, and the total number of employees concerned, were calculated
• Section 234A (Notice of Industrial Action)
  • The number of affected workers in each category listed (and consequently, the duty to provide an explanation of how this figure was determined)

This new process will only require the unions to provide the following:

• A list of categories of employees being balloted
  • A list of categories to which relevant employees belong
• A list of workplaces in which the employees work
• The total number of employees concerned
  • Total number of affected employees
  • Number of affected employees who work at each listed workplace
  • An explanation of how these figures were arrived at.

Final note

There are a lot of changes here, and this area of the bill maybe overlooked by many, but it’s very important all businesses are aware of the changes and take appropriate action if needed to ensure that their responsibilities are upheld.