Employment Rights Bill Deep Dive #3 - A new chapter for trade unions - changes to worker protections and collective bargaining

The Employment Rights Bill is widely regarded as the most significant piece of employment legislation in decades. The Bill contains a suite of far-reaching reforms to trade union law and workers’ collective bargaining rights. Those reforms are largely consistent with the manifesto pledges outlined by the Labour party in its Plan to Make Work Pay, with an emphasis on reversing the “anti-union” policies introduced by the previous Government as well as strengthening protections for trade unions and their members.

In this Law-Now, we look in more detail at the key changes, including a new right of access to workplaces for trade unions and enhanced protection for workers engaging in strike action, the likely impact of those changes on employers and how to prepare for them.

New obligation to provide statement of trade union rights

The Bill will introduce a new obligation on employers to provide workers with a statement of trade union rights. This will require an employer to give a worker a written statement that they have the right to join a trade union. The statement will need to be given at the same time as the statement of employment particulars required by section 1 of the Employment Rights Act 1996 and “at other prescribed times”. The Government’s aim in introducing this new right is to improve working conditions by increasing trade union membership and worker participation in the workplace. 

Regulations will determine what information must be included in the statement, the form it must take and the way it is to be given. The Bill states that the information may include a worker’s existing protections against detriment and dismissal on grounds related to union membership or activities. What is meant by giving the information at “other prescribed times” is not yet known although could mean that the information has to be recommunicated at specified intervals and/or that the information should be provided to existing workers as well as new recruits.

Failure to give a statement will result in an uplift of between two to four weeks’ pay where another successful substantive claim (such as unfair dismissal and/or discrimination) is brought. This is already the case where an employer has failed to provide a section 1 statement.

Employers will need to review and update their template terms and conditions of employment to ensure the relevant information is covered in preparation for the change. Employers may also need to give the information to their existing workforce – either by way of internal communications or contractual updates once the detail is known. Given the fact that employers are already required to provide employees with a section 1 statement, the new right should not be too administratively burdensome.

New right of trade unions to access workplaces

The Bill will introduce a new right of trade unions to access workplaces. The Government’s aim is to provide unrecognised, independent trade unions with the opportunity to recruit and organise within a workplace in order to gain recognition.

Currently, trade unions can only access workplaces through individual members, limiting their ability to promote or exercise their functions.

The Bill (as amended by the Amendment Paper published by the Government last week) will give a ‘qualifying trade union’ a new right to access workplaces for the purposes of meeting, representing, recruiting and organising workers, as well as to facilitate collective bargaining. The Bill makes clear that (i) access means physical entry into the workplace, and (ii) the access purposes do not include organising industrial action. As amended, the Bill also clarifies that the right of access does not include any part of a workplace used as a dwelling (such as staff accommodation on site).

A ‘qualifying trade union’ is a trade union that has a certificate of independence. A trade union will be certified as independent provided that it is neither (i) under the control of an employer, nor (ii) liable to interference from an employer. Any trade union whose name appears on the list of current trade unions maintained by the Certification Officer can apply for a certificate of independence.

The right will be contingent on a qualifying trade union and employer entering into an “access agreement” which sets out the terms on which a union will have access and may be varied by the parties at any time. The process for entering into an access agreement will involve a union presenting an “access request” to the employer, who may give the union a “response notice” agreeing or disagreeing with the request (in whole or in part). Where the employer chooses to respond, the parties will then have a “negotiation period” in which to agree the terms of access.

An application may be made to the Central Arbitration Committee (CAC) to determine a trade union’s access where the union has given an access request to an employer and either:

1. the employer has not responded within the response period, or
2. the employer has responded within the response period but the negotiation period has ended without agreement.

In determining such an application, the CAC must take account of the “access principles” which are:

1. access should be permitted where it does not unreasonably interfere with the employer’s business;
2. an employer should take reasonable steps to facilitate access; and
3. access should only be refused where it is reasonable in all the circumstances to do so.

The Bill states that those circumstances (which may be prescribed by regulations) could include the number of members of the union in the workplace and the ability of the employer to facilitate access to the workplace. Unlike statutory recognition requests, a trade union will not be prevented from making an access request where an employer already recognises another trade union. This could, however, be a relevant factor for the CAC to take into account in determining an access request.  

The CAC will have powers to vary and enforce access agreements and impose fines on employers. Appeals against CAC decisions or proceedings will be to the EAT.

This new right is likely to be more impactful for employers in non-unionised workplaces who will be less experienced in dealing with trade unions and there may be a requirement for upskilling. A union will be more willing to commit time and resources to accessing a workplace where their recruitment activities are most likely to pay off – larger employers in sectors where union representation has not traditionally existed can expect to be a focus. A union is more likely to gain traction among a disaffected workforce where employee representation is less developed. Accordingly, employers may consider how to ensure and/or improve staff representation in the workplace including through the use of employee forums or even non-independent (so called ‘sweetheart’) unions.

Concerns have been raised about the health and safety and data security issues posed by non-employees entering workplaces. Employers will need to balance the right of access with adequate protections against those risks. Access may ultimately evolve to include virtual access such as hosting video calls with workers which may be less risky (although raises different concerns around cyber security in particular) but could give unions greater access to remote and home workers.

Heightened protections for workers engaged in industrial action

Protection against dismissal for taking industrial action

The Bill will simplify the existing dismissal related protections for employees taking part in lawful strike action so that an employee will be treated as automatically unfairly dismissed where the reason (or principal reason) for the dismissal is that they took protected industrial action. This will create additional challenges for employers facing protracted industrial action.

Protection against detriment for taking industrial action

The Bill will introduce a right for workers not to be subjected to detriment (short of dismissal) by their employer where the purpose is to prevent or deter a worker from taking protected industrial action or penalising them for doing so. Prohibited detriments may be prescribed by regulations but may include withholding pay from striking workers.

This change will rectify the gap in protection identified earlier this year by the Supreme Court in Secretary of State for Business and Trade v Mercer where a support worker in the care sector was suspended and unable to earn overtime pay after taking part in lawful strike action.

Protection against blacklisting

The Bill will also strengthen existing protections against blacklisting.

Repeal of minimum service levels legislation

The Bill will repeal the Strikes (Minimum Service Levels) Act 2023, which mandated minimum staffing levels in key sectors such as health, fire rescue, education, transport, nuclear and border security during strike action. The repeal will take effect on the day that the Bill receives Royal Assent.  

Simplification of statutory recognition for trade unions

The Bill simplifies the existing statutory recognition process with the aim of providing workers with a meaningful right to organise through trade unions.

It will replace the existing 10% support threshold for the CAC to accept an application for recognition with a threshold of anywhere between 2% and 10%. The TUC has made clear that it will lobby for the new threshold to be set at 2%, which could result in formal union recognition in workplaces with extremely low membership. This raises questions as to workplace democracy, with the potential for non-members having unionisation forced on them by a very small minority of employees and being overlooked in union-employer negotiations. 

The Bill will remove the requirement at the application stage for a union to demonstrate that there is likely to be majority support for trade union recognition. It will also remove the 40% support threshold from recognition ballots so that only a simple majority of those voting will be required. This will make it easier for unions to gain recognition in workplaces where they are currently excluded.

Reduced thresholds for industrial action ballots

Currently, at least 50% of those eligible to vote in an industrial action ballot must participate and at least 50% must vote in favour for a lawful result. That will change as the turnout threshold will be removed, leaving it as a simple majority of votes cast. This means that the support of the few could impose the effects of industrial action on the many, potentially disadvantaging both employers and workers.

The Bill will also reduce the period of notice a union is required to give an employer of industrial action from 14 days to 7 days (which was the period that applied prior to the changes introduced under the Trade Union Act 2016). This means that employers will have less time to prepare for strike action, negotiate with unions and/or apply for injunctions/interdicts.

The Bill will also overturn stricter requirements introduced by the Trade Union Act 2016 in relation to the content of voting papers. This change means that ballot papers will only need to ask which type of industrial action workers want to partake in – strike action or action short of a strike.

The Government has separately committed to introducing the use of modern and secure electronic balloting in due course. Currently, ballots must be conducted by post.

Facilities for trade union representatives

Currently, employees who are also trade union representatives are entitled to take a reasonable amount of paid time off for the purpose of carrying out their union duties. There is, however, no right to access workplace facilities (such as meeting rooms, access to a telephone etc) during that time off.

The Bill will give trade union representatives a right to such accommodation and other facilities, where they request them, as is reasonable in all the circumstances, during paid time off for carrying out trade union duties. The Government’s aim is to address a concern that paid time off on its own is often insufficient to allow trade union representatives to carry out all of their duties.

What is reasonable will be addressed by an Acas code of practice, and an employee will be able to complain to an employment tribunal that their employer has failed to provide them with facilities.

Employers will need to carefully review requests for facilities and the purpose of the request. Time off is only permitted for specified purposes such as analysing the training needs of and arranging training for union members. Other activities are excluded from the scope of paid time off including attending union meetings. Facilities should be provided where they are requested in appropriate circumstances and it is reasonable to provide them.

Trade unions: issues for consultation

On 21 October 2024, the Government published its consultation Making Work Pay: creating a modern framework for industrial relations. The consultation seeks views on a range of trade union related matters including:

1. the proposed CAC complaints process in relation to the right of trade unions to access workplaces;
2. simplifying industrial action ballots; and
3. unfair practices during trade union recognition.

The consultation closes on 2 December 2024.

Comment

The changes to be introduced will give trade unions a stronger voice in the workplace. Trade union rights will be a key issue going forward, particularly for employers who are unaccustomed to dealing with unions and may have to do so for the first time due to the new right of access and changes to the statutory recognition procedure.

By raising awareness, the new right to a statement of trade union rights could lead to an increase in membership levels and/or trade union activity (including, for example, voluntary and/or statutory recognition requests) within the workplace, and employers should consider their strategy in that regard in anticipation of the change. 

Although the material provisions are not expected to come into force before 2026, there are steps that employers can take now to prepare for the changes and to help reduce their impact on business operations.

For expert analysis of other aspects of the Employment Rights Bill, see the Law-Now articles in our Employment Rights Bill Deep Dive series: (#1) Unfair dismissal, statutory sick pay and family friendly rights and (#2) Fire and rehire, zero hours workers and flexible working. 

This article was co-authored by Zosia Zakrzewska and Rebecca Shipton, trainee solicitors in the CMS Employment team.