The Employment Rights Bill ('the Bill') will introduce some significant reforms to trade union and industrial action law, including a new right of trade union access, a simplified statutory recognition process and changes to industrial action ballots, notices and mandates. 

Some of the changes (marked * below) will come into force two months after the Bill becomes law. Others require further detail to be set out in regulations, for which the timescale is currently unknown.

Access to workplaces

New provisions will enable trade unions and employers to enter into 'access agreements' allowing union officials to access an employer's workforce (both physically and to communicate digitally) for various 'access purposes'. This will include the recruitment and support of workers but not organising industrial action.

An application to determine a union's access may be made to the Central Arbitration Committee ('CAC') by the union if the employer fails to respond to its request or by either party where negotiations are unsuccessful. The details of how to request an access agreement, how to respond, the process to follow if there is no agreement and the default terms will be set out in regulations.

Statement of trade union rights

Employers will have to give workers a written statement advising of their right to join a trade union, at the same time as providing a section 1 statement and at other prescribed times. Compensation for failing to comply will be the same as for failing to provide a section 1 statement (2 or 4 weeks' pay, subject to the statutory cap on a week's pay).

Statutory recognition

At the moment to make an application for statutory recognition, a union must show that at least 10% of a proposed bargaining unit are union members and that the majority of them are likely to support recognition. The CAC can only then order recognition if either (i) at least 50% of the bargaining unit are union members or (ii) a ballot is held, in which a majority of votes cast are in favour and at least 40% of all workers in the bargaining unit vote for recognition. The Bill will simplify this by:

  • Reducing the 10% membership threshold for the CAC to accept a trade union application with a test of anywhere between 2% and 10%;
  • Removing the requirement for a union to demonstrate to the CAC that there is likely to be majority support for recognition; and
  • Removing the 40% support threshold from recognition ballots.

Industrial action ballots

  • Turnout threshold: the requirement for at least 50% of all eligible members to have voted will be removed.
  • Support threshold in ballots of workers engaged in 'important public services': the requirement that, in addition to meeting the turnout threshold, at least 40% of those entitled to vote must have voted in favour of industrial action will be removed.*
  • Information on voting papers: voting papers will be simplified so that the union will just have to ask which type of industrial action the members want to take part in, expressed in terms of whether it is strike action or action short of a strike.*
  • Information to members: the requirement to tell all those entitled to vote the number of individuals who were entitled to vote in the ballot and whether the number of votes cast was at least 50% of the number of individuals entitled to vote will be removed.
  • Information to members in ballots of workers engaged in 'important public services': the requirement to tell all those entitled to vote whether the number of people voting "yes" was at least 40% of the number of individuals who were entitled to will be removed.*
  • Notice of ballot and sample voting paper: the union will no longer have to provide information on the number of employees in each category or workplace or explain how the total numbers were determined.*
  • Electronic balloting: the UK government has stated that it is committed to introducing modern and secure e-balloting for trade union ballots.

Notice and duration of industrial action

  • Notice of industrial action will be reduced from 14 to 10 days.*
  • The information to be provided in the notice will be simplified: the requirement for a union to disclose the number of employees in each category expected to take part in industrial action will be removed.*
  • The mandate for industrial action will be extended from 6 to 12 months, with no possibility of extension.*

Detriment and dismissal

The Bill creates a new right for workers not to be subjected to a detriment “for the sole or main purpose of preventing or deterring the worker from taking protected industrial action or penalising the worker for doing so”. This plugs a gap in the existing legislation highlighted by the Supreme Court.

The existing protection against dismissal for taking part in protected industrial action is also being extended. The 12-week cap will be removed so that protection will extend to the full duration of a lawful and official strike and after that strike has concluded: an employee will be automatically unfairly dismissed where the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action.

Minimum service levels

The Strikes (Minimum Service Levels) Act 2023 enables minimum service levels to be set for strikes in 'relevant services' in the fields of health, transport, education, fire and rescue, border control, nuclear decommissioning and radioactive waste management services. This will be repealed on the day the Bill becomes law.

Check-off in the public sector

Check-off involves an employer deducting trade union subscriptions directly from a union member's pay and transferring the money deducted to the union. In the public sector check-off is only permitted if a worker can pay their union subscription by other means (such as direct debit) and the union makes a reasonable payment to the employer in respect of the cost of administering the check-off system. The Bill will repeal this restriction.*

Picketing

The requirement on unions to supervise picketing will be removed.*

Time off and facilities

  • In addition to the existing right to time off, employers will have to provide trade union officials and learning representatives, where required, with such accommodation and other facilities for the purposes of carrying out their duties / training as is reasonable in all the circumstances, having regard to any relevant provisions of an ACAS code of practice.
  • Equality representatives do not currently have rights to time off or facilities. This will be remedied by the Bill.

This is only a summary of the main provisions in the Employment Rights Bill on trade unions and industrial action, some of which are complex. For more information please contact a member of Brodies Employment and Immigration team.

Contributor

Julie Keir

Practice Development Lawyer