Employment Rights Bill

The Employment Rights Bill will make extensive changes to the law on trade union rights and industrial action.

Access agreements

The Bill will give trade union officials a wider right to access workplaces for recruitment, organising (not including organising industrial action) and collective bargaining purposes, subject to following a statutory process.

The union would give the employer an access request. Employers could then either choose to negotiate the terms of legally enforceable ‘access agreements’ or, should the employer not respond to the request, the union would be able to apply to the Central Arbitration Committee (CAC) for it to order access.

To determine any such application, the CAC will take into account that:

• union officials should be able to have workplace access in a manner that does not unreasonably interfere with the employer’s business
• an employer should take reasonable steps to facilitate union access to a workplace, and
• access should be refused entirely only where this is reasonable in all the circumstances

There is no requirement in the Bill for a union to have any particular level of membership before seeking access and there is no limit on the overall number of unions that can seek access. However, the Secretary of State can prescribe circumstances in which it is reasonable to deny access. These factors include the number of union members and the total number of workers in the workplace. The government has indicated that there will be further regulations and a code of practice dealing with access, and so it is possible that minimum membership levels will be introduced. Where an access agreement is concluded, the CAC will also have powers to enforce access agreements.

Statutory union recognition

Currently, to apply for 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:

• at least 50% of the bargaining unit are union members or
• 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 process by removing the requirement at the application stage for a union to demonstrate that there is likely to be majority support for trade union recognition, removing the 40% support threshold at the recognition ballot stage, and consulting on reducing the 10% application threshold for the CAC to accept a trade union recognition case.

Notifying workers of their right to join a trade union

The Bill will create a new requirement for employers to provide workers with a written statement of his or her right to join a trade union.

This statement must be given at the same time as the employer provides the statement of their employment particulars (s. 1 statement), and at ‘other prescribed times’ that will be set out in regulations. Details of the content and form of the statement, and the way it must be provided, will also be specified in secondary legislation. The penalties for failure to comply with this new requirement will be aligned with those that apply to a failure to provide a statement of employment particulars.

Protections for union representatives and members

The Bill will introduce new protection for workers against detriments short of dismissal for taking part in protected industrial action, correcting the gap in existing protection confirmed in Secretary of State for Business and Trade v Mercer. It will also strengthen and simplify the existing protection against being dismissed for taking part in protected industrial action.

The Bill will introduce a new statutory role for ‘union equality representatives’ in workplaces with recognised unions. Their duties would include promoting equality in the workplace, providing advice and support to union members on equality matters, and consulting with the employer on equality matters. They will have a right to paid time off to carry out these duties.

The existing rights of representatives of recognised unions will be increased, requiring employers to provide them with reasonable facilities and accommodations to carry out their duties, in addition to their existing right to paid time off.

The Bill will extend existing protections against blacklisting, to cover discriminatory actions by bodies other than employers or employment agencies.

Industrial action

The Employment Rights Bill will repeal most of the Trade Union Act 2016.

Amongst the measures are:

• simplifying the balloting requirements for industrial action so that the union will only need the support of a simple majority of those voting in the ballot, rather than a percentage of those eligible to vote
• reducing the information a union must include on the ballot paper
• reducing advance notice of industrial action from 14 to 7 days, and
• repealing the picketing provisions

The government has also committed to allowing electronic balloting, possibly by 2025.

The Employment Rights Bill will also repeal the Strikes (Minimum Service Levels) Act 2023 entirely – from when the Bill receives Royal Assent.

Some of the other measures of the Trade Union Act 2016 will be repealed two months after the Bill receives Royal Assent, without further consultation. Others will need longer to be removed because of the need for further regulation and/or consultation.

The government has published a consultation paper seeking views on updating trade union legislation, including:

• simplifying the requirements on industrial action ballots and notice to employers
• strengthening provisions to prevent unfair practices during the trade union recognition process
• removing the 10-year requirement for unions to ballot their members on the maintenance of a political fund
• securing a mandate for negotiation and dispute resolution
• extending the expiry of a trade union’s mandate for industrial action from six to 12 months
• reducing the industrial action notice period
• updating the law on repudiation and ‘prior call’
• the enforcement mechanism for the request for access to a workplace