Employment Rights Bill – a boost for union rights

The Government’s Employment Rights Bill has the potential to significantly shift employment law landscape and is due to be considered once more in Parliament.

Although changes to the Government's senior members may result in a re-focus or even a slowdown in the pace of change, we do not currently anticipate any major deviation from the draft that has already progressed through the House of Commons and House of Lords.  

The draft Bill aims to reverse steps taken by the previous Government, strengthen collective rights and simplify procedures for both unions and employers. Bearing in mind that aside from the public sector, a number of large private sector employers have reached recognition agreements with unions in recent years (for example Lloyds, Barclays, IKEA and Tesco), these changes could mean that an increasing number of employers will need to pay attention to their industrial relations strategy.

We review the changes and consider what steps your organisation can take to prepare.  

Industrial Action Reform

The Bill introduces a more permissive framework for lawful industrial action. 

Notice: notably, the notice period that unions must give before taking industrial action would be reduced from 14 to 10 days and the duration of a valid ballot mandate would be extended from 6 months to 12.  

Balloting: to take industrial action, trade unions will need a simple majority of members who respond to an industrial action ballot to vote in favour. This would also apply in 6 key public sector services (fire, health, education, transport, border security and nuclear decommissioning sectors) which are currently obliged to secure the support of 40% of the workforce in a strike ballot. Finally, the Government has committed to introduce electronic balloting for trade union statutory ballots. 

Protection from detriment: the Bill enhances protections for workers participating in lawful industrial action by introducing a new right not to suffer detriment for participation.  

Existing protections would also be extended.  As things stand employees are protected from dismissal for 12 weeks after the start of any industrial action that they participate in. The Bill would remove this 12-week cap, aligning UK law more closely with international standards. 

Trade Union Recognition

If passed, the Bill would facilitate the statutory union recognition process. The threshold for union membership required to trigger recognition procedures is likely to be lowered (by way of additional regulations) from 10% potentially to as low as 2%; and a simple majority vote will now be sufficient to show union support, replacing the previous 40% workforce support requirement.

Procedural reforms also aim to stymie employer tactics that dilute union support. For example, employers will no longer be permitted to expand (e.g. by mass recruitment ) the proposed bargaining unit after a recognition application has been made. Employers will also be prevented from recognising a non-independent trade union as a tactic to avoid recognising an independent trade union which has made a recognition request.

Union Access Rights

Currently, unions do not have an independent right of access to workplaces and therefore depend on securing employer consent to do so. The Bill would enable unions to benefit from a statutory right to access workplaces, both physically and digitally, for the purposes of recruitment, representation and collective bargaining. Employers will be required to respond to access requests within 20 working days of the acceptance of a trade union application by the Central Arbitration Committee (CAC); and the CAC will have enforcement powers, including the ability to impose financial penalties for non-compliance.

Time Off and Facilities

The Bill expands entitlements to paid time off and reasonable facilities for union officials, learning representatives, and (for the first time) equality representatives. In a notable shift, there will be a presumption that a union representative’s request for time off is reasonable. The burden will be on the employer to show that it was not in fact a reasonable amount of time off.  

This will undoubtedly be the source of some friction after introduction as the unions will want to test their new rights (and the employer’s resolve).

Communication of right to join a Trade Union 

Another notable potential change is that employers will be required to inform all new and existing workers of their right to join a trade union. The proposal is that employers should provide a written statement informing workers of their right. The details will be set out in Regulations, with implementation expected by October 2026 at the earliest. This change is intended to raise awareness of collective rights and promote transparency in the employment relationship.

Repeals and Legacy Legislation

The Bill would repeal several measures restricting Trade Union rights which were introduced in recent years. These include the Trade Union Act 2016 as well as the Strikes (Minimum Service Levels) Act 2023, which imposed restrictions on industrial action in essential services. 

Practical implications

If implemented in full, the Bill will allow unions a much freer hand than they have had for some time and employers should prepare for more active, assertive and demanding union engagement.  However, we’re awaiting a whole suite of Government consultations to be launched before the end of 2025 and then subsequent Regulations to establish the full legislative picture.

Key actions to take now could include:

• Working on improving organisational culture and workplace relations to reduce the levels of dissatisfaction which unions thrive on
• Reviewing internal procedures for responding to employee concerns
• Engaging with pre-existing employee consultation forums and union representatives
• Keep up with what’s happening in this area so that when the Bill is passed and Regulations are introduced, your organisation is ready to notify employees of their right to join a trade union and your HR teams are trained on the associated union access rights and entitlements 

In summary, these reforms mark a shift towards greater facilitation and encouragement of collective rights and will require employers to engage proactively with unions and adapt internal policies accordingly.

Clyde & Co’s UK Employment team has a track record of advising on union related matters including:

• Handling disputes and industrial action
• Balloting
• Trade union recognition and de-recognition issues
• Consultation with unions in TUPE and collective redundancy situations
• Unlawful inducements
• Injunctions and interim relief

Please contact Stephen Miller for more information.