As part of our series of updates exploring the implications of the Employment Rights Bill (the Bill), we consider the government’s plans to repeal much of the Trade Union Act 2016 (the 2016 Act) and to reform the UK’s industrial relations framework.
The government’s view is that the 2016 Act places unnecessary restrictions and red tape on trade union activity. It also plans to repeal the Strikes (Minimum Service Levels) Act 2023 (the 2023 Act), which enabled the Secretary of State to set minimum service levels for strikes in certain sectors.
The Bill, which may change during the Parliamentary process, proposes repealing the vast majority of the 2016 Act, with two main exceptions: retaining the six-month ballot mandate expiration date and retaining the independence of the Certification Officer from political control (ministerial direction). Some of the key changes in the event of the 2016 Act’s repeal would be the removal of unions’ obligations to provide certain voting and dispute information in ballots; the removal of the requirement for trade unions and employers’ associations to pay a levy to the Certification Officer (CO); the removal of certain investigatory powers of the CO following a complaint or on the CO’s own initiative; and the removal of the CO’s power to impose financial penalties. The Bill would also remove the requirement to supervise picketing and the requirement for trade unions to pay for the administration of check-off (payroll deductions for trade union subscriptions) in the public sector.
By repealing the 2016 Act and the 2023 Act, the government hopes to reset industrial relations between unions, employers and workers. The Bill also sets out proposals to simplify the trade union recognition process and introduce new rights for trade union representatives, with the aim of ensuring industrial relations are based on good faith negotiation and bargaining.
To do so, the Bill proposes the following key changes:
| Current position | Position under the Bill |
| 50% threshold in strike ballot turnouts. Additional requirement that 40% of voting members vote to support action in ballots for industrial action in important public services, which include education of those aged under 17, fire, health, border security, transport and nuclear decommissioning. | No turnout threshold. A simple majority of members responding to an industrial action ballot would suffice for industrial action. The requirement for 40% support in important public services would be removed. |
| No protection for detriment short of dismissal for participating in lawful industrial action. The Supreme Court ruled in 2024 that this omission was incompatible with Article 11 of the European Convention on Human Rights. | The Bill would introduce a new protection for workers from employer-imposed detriments aimed at deterring or penalising them for engaging in lawful industrial action. Specific “prescribed detriments” would be outlined in regulations. |
| Workers dismissed within 12 weeks of starting protected industrial action can claim unfair dismissal. Protection ends after 12 weeks, unless the employer has not made reasonable efforts to resolve the dispute. | The 12-week limit would be removed, providing continuous protection from unfair dismissal for those participating in protected industrial action, regardless of duration. Employers would have to justify dismissals during such actions as being unrelated to the strike. |
| Blacklisting regulations prohibit the creation, sale or use of lists of individuals based on trade union membership or activities, if the list is intended to be used to discriminate against these individuals in employment. Breaches may also constitute data protection violations, as trade union membership is classified as special category data under data protection law. Existing legislation restricts blacklisting protections to activities directly involving employers or employment agencies. | The Bill would extend blacklisting prohibitions to cover lists created through predictive technology, such as AI, even if initially compiled without discriminatory intent but later used for such purposes. The Bill would also cover lists created by third parties who do not have direct employment relationships with affected individuals. The Bill would remove language limiting the restriction to employers or agencies, broadening protection to encompass third party organisations who may compile or use blacklists. |
| Union representatives are entitled to reasonable paid time off for union duties and training, based on what is deemed reasonable under the Acas Code of Practice. However, many representatives report insufficient time and there is no statutory obligation for employers to provide facilities to support their duties. | The Bill would strengthen the right to reasonable paid facility time, by introducing a presumption that the union representative’s view of “reasonable” time is correct unless proven otherwise by the employer at a tribunal. Employers would be required to provide union representatives with reasonable access to necessary facilities, such as meeting spaces and the internet, in line with Acas guidance, to support their duties and training. |
| There is no statutory recognition of, or specific right to time off for, trade union equality representatives to promote workplace equality. | A new statutory right would allow equality representatives to take reasonable paid time off during working hours for specific equality-focused duties. This right would apply if the union has notified the employer in writing of the representative’s role and confirms the representative has received, or will soon complete, necessary training. |
| No independent right of access to workplaces. | The Bill would introduce a framework enabling certified trade unions to request workplace access for recruitment, representation and bargaining purposes. If an employer objects to the request, the matter can be referred to the Central Arbitration Committee (CAC) for a binding decision. |
| No requirement on employers to inform employees of their right to join a trade union. | Employers would be required to inform all employees of their right to join a trade union, aligning with existing obligations to provide workers with employment particulars under the Employment Rights Act 1996. |
| When seeking compulsory recognition, a union must show the CAC that they have 10% membership in the proposed bargaining unit and that they are likely to have a majority in the subsequent ballot. The union must obtain a majority in the recognition ballot and 40% of the workforce in the proposed bargaining unit must support union recognition. | The Bill would remove the current requirement that unions show they are likely to have majority support before applying to the CAC. It also removes the requirement that 40% support of the workforce in a proposed bargaining unit vote in favour of recognition. The union would only need to demonstrate 10% membership of the proposed bargaining unit and secure a simple majority in the recognition ballot. |
Future plans
The Bill does not include any proposal on electronic balloting for statutory ballots but the government has committed to introducing modern and secure electronic balloting in due course. Its next steps paper, published alongside the Bill, indicates it will launch a working group by the end of 2024, involving cybersecurity experts and trade unions.
It has already launched a consultation on creating a modern framework for industrial relations, which is open until 2 December 2024. Among other things, the consultation seeks view on:
- preventing unfair practices during trade union recognition;
- simplifying industrial action ballots;
- appropriate notice of industrial action;
- extending the expiry of a strike mandate to 12 months; and
- enforcing the new right for trade unions to access workplaces.
Timing and implications
The government has indicated that most of the Bill’s measures will not take effect before 2026. If it is enacted in its current form, employers that recognise a trade union will have to get to grips with the strengthened protections and new rights of trade unions and their representatives. Employers facing a request for recognition will need to be mindful of the simplified process and reduced thresholds.
You can read our overview of all the key measures in the Bill here.
