Employment Rights Bill: trade unions and industrial action
Overview
The Employment Rights Bill, which received its second reading on 21 October 2024, is the main vehicle for implementing the Government’s pre-election promises in its Plan to Make Work Pay.
In this briefing we'll be focusing on part 4 of the Bill, which addresses trade unions and industrial action. The aim of these measures is described in the Plan as follows:
“Labour will update trade union legislation, so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations are based around good faith negotiation and bargaining.”
If you expand the headings below you can find information about these provisions arranged by topic. The Government is currently consulting on further adjustments to these measures. The current consultation will close on 2 December 2024 and further consultation is planned. Where relevant for each topic, the consultation proposals have been noted alongside a summary of what is currently in the Bill.
See here for our earlier briefing focusing on the changes to employment rights set out in parts 1 and 2 of the Bill. Other elements of the Bill – which we intend to cover in future briefings – include establishing the Adult Social Care Negotiating Body and creating the Fair Work Agency to bring together different government enforcement bodies.
What’s in the Bill
In what are some of the most detailed provisions in this part of the Bill, it will create 12 new sections to be added to our trade union legislation to create a framework for access agreements. This process will be enforced by the Central Arbitration Committee with a right of appeal to the Employment Appeal Tribunal.
Consultation/regulations
The all-important details of exactly how a request for an access agreement should be made, how it should be responded to and the process to follow if there is no agreement will be set out in regulations.
What’s in the Bill
This Bill would remove the special thresholds for industrial action ballots implemented by the Trade Union Act 2016. That means that there will no longer be a minimum 50% turnout requirement in order for industrial action to be approved. The additional requirement for “important public services”, which requires at least 40% of the workers balloted to support the industrial action, will be also removed.
In addition, there will be changes to the information that needs to be given in ballot papers and the length of notice that unions need to give employers of planned industrial action will be reduced from 14 to 7 days.
Consultation/regulations
The Government is consulting on whether a different notice period would be more “suitable”. It's also considering extending the mandate period (ie the length of period after which the union would need to conduct a new ballot) from 6 to 12 months (with no option for extension by agreement, as currently applies).
What’s in the Bill
The Bill will repeal the restrictions on ‘check-off’ for public sector employees introduced on 9 May 2024 via the Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2024.
What’s in the Bill
The Bill aims to make it easier for unions to secure recognition by invoking the statutory procedure. The requirement at the application stage for a union to demonstrate that there is likely to be majority support for trade union recognition will be removed. In addition, there will no longer be a requirement for a 40% support threshold at the recognition ballot stage. Unions would therefore only need to secure a simple majority in favour to have recognition approved.
Consultation/regulations
The Government will consult on reducing the 10% application threshold for the Central Arbitration Committee to accept a trade union recognition case. The Bill provides that this threshold can be set at between 2% and 10% by regulations.
What’s in the Bill
The Bill requires employers to provide trade union representatives who are taking time off for trade union duties with reasonable facilities for carrying out those duties where requested.
The Bill also creates the right to time off and access to facilities for a new group of workers: equality representatives. The Bill specifies the training these representatives must undertake before being entitled to this new right.
Finally, the Bill repeals the provisions that currently allow a Minister to make regulations requiring public sector employers to report the time off taken for trade union duties and activities. These duties have been in place since April 2017.
What’s in the Bill
The requirement, introduced by the Trade Union Act 2016, for unions to appoint picket supervisors during industrial action will be removed.
What’s in the Bill
The current protections against being dismissed for taking part in protected industrial action would be extended, so that these apply throughout the period of industrial action, rather than during the first 12 weeks only.
In addition the Bill would create a new right for workers not to be subjected to 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 would plug a gap in the legal protection for union members identified by the Supreme Court in April 2024. In that decision it ruled that current legislation - where industrial action is treated differently from other trade union activities - is not compliant with article 11 of the European Convention on Human Rights, which protects freedom of association.
Consultation/regulations
The types of applicable detriment will be defined by regulations. It's likely that there will be an exception which will continue to allow employers to withhold payment for duties that workers are not performing while on strike.
What’s in the Bill
This Bill creates a new right for workers to be given a written statement that they have the right to join a trade union. This must be given to the worker at the same time as the statement of written particulars of employment – ie by their first day at work.
Consultation/regulations
Regulations will specify the content of this statement and whether it needs to be given at other times, as well as at the beginning of employment.
What’s in the Bill
The amendments to trade union legislation made by the Strikes (Minimum Service Levels) Act 2023 will be repealed when the Bill receives Royal Assent. The 2023 Act allowed minimum service levels to be applied within certain key sectors during strike action. This enabled employers to issue a work notice, to require people to work on a day of strike action.