Employment Rights Bill: trade union law
21 November 2024
In our previous article, we looked at the provisions of the draft Employment Rights Bill, which the Government intends to bring into force in 2026.
In this article, we look in more detail at the sections of the Bill dealing with trade union law. Although the Bill’s provisions are clearly intended to increase unionization, perhaps dramatically, the Government has tended to frame its rationale for strengthening workers’ rights on a broad basis:
The government believes strong collective bargaining rights and institutions are key to tackling problems of insecurity, inequality, discrimination, enforcement and low pay. [1]
Elsewhere the Government states:
Our existing framework for industrial relations and collective bargaining is full of inefficiencies and anachronisms that work against cooperation, compromise and collaboration. We want to create a positive and modern framework for trade union legislation that delivers productive and constructive engagement, respects the democratic mandate of unions, and works to reset our industrial relations. [2]
Below, we set out the main changes.
Right to a statement of trade union rights
Most employers will be aware of the requirement to give workers a “Section 1” statement, containing prescribed information about key terms and conditions, at the commencement of their employment. The Employment Rights Bill adds a new obligation to also give workers a statement of their right to join a trade union. The information that must be contained in this statement, the exact form it will take, and the manner in which it must be given will be confirmed in regulations which are yet to be published.
Employers may be required to include in this document a statement of statutory trade union rights, such as the right not to be dismissed or suffer a detriment for taking part in lawful industrial action.
Employers will also be required to inform workers of their trade union rights “at other prescribed times”, which will be confirmed in regulations.
Trade union rights of access
The Bill will enable any listed trade union to make an “access request” to an employer. (For the current official list of trade unions, see here.) The access request may specify times and other terms on which the union wishes to gain physical access to the workplace for any of a permitted list of purposes, which include meeting, representing, recruiting or organizing workers (whether or not they are unionized) and facilitating collective bargaining – but excluding organizing industrial action.
On receipt of the access request, the employer will be required to issue a statutory “response notice” within a set period (which is yet to be confirmed). In the response, it will either agree to access on the terms proposed by the union, or else disagree with some or all of them. If there is disagreement, there will then be a statutory “negotiation period” during which the employer and the union can attempt to agree terms. Whenever agreement is reached, the employer and the union must jointly notify the Central Arbitration Committee (CAC) of the terms of the agreement.
If the parties fail to agree within the negotiation period, or if the employer does not respond to the access request within the response period, the union can apply to the CAC to determine the application. In determining an application, the CAC will have powers to make enquiries, make requests for documents and give any interested parties an opportunity to be heard. Generally, it will determine requests for access on statutory “access principles” which are as follows:
Officials of a listed trade union should be able to access a workplace for any of the access purposes in any manner that does not unreasonably interfere with the employer’s business.
An employer should take reasonable steps to facilitate access by officials of a listed trade union to a workplace.
Access should be refused entirely only where it is reasonable in all the circumstances to do so.
In this scenario, the CAC will determine the terms of any access agreement, including any assistance the employer must provide to the union, and the agreement will then be deemed as having been entered into by the union and the employer. The Secretary of State will have powers to control how the CAC determines agreements, including a power to prescribe terms of an access agreement that the CAC must consider to be:
terms that would not unreasonably interfere with an employer’s business
terms that would constitute reasonable steps that an employer should take to facilitate access
terms that would be reasonable for a union to comply with
The Secretary of State may also prescribe:
circumstances which the CAC must take as reasonable grounds for refusing the union access to the workplace
circumstances in which the CAC must refuse access
Such circumstances may include the number of workers employed or unionized, the type of business or workplace, the employer’s ability to facilitate access, avoiding prejudice to the prevention/detection of criminal offences, and national security. Until these powers are exercised under the legislation, it is difficult to know how unions’, employers’ and public interests will be balanced, but it would be surprising if sweeping prohibitions on union access were possible in most cases.
Parties can complain to the CAC of breach of an agreement, and the CAC can vary or enforce agreements, including, ultimately, by issuing fines. Parties can appeal decisions of the CAC to the Employment Appeal Tribunal (EAT).
Lowered recognition thresholds
As the law currently stands, if an employer and union cannot reach a recognition agreement and the union applies to the CAC to determine recognition, the CAC cannot accept the application unless (among other requirements) it is satisfied both that (1) at least 10% of the workers in the bargaining unit are members of the union and that (2) the majority of workers in the bargaining unit would be likely to support recognition for collective bargaining. Depending on the context, these can be difficult criteria to meet. The Employment Rights Bill proposes to:
grant the Secretary of State the power (subject to Parliamentary approval) to lower the required percentage of workers who are union members to a minimum of 2% (and it will not be higher than 10%); and
remove altogether the requirement to show that a majority of workers would support recognition.
Later in the recognition process, as the law stands, if the CAC orders a workplace ballot on recognition (which it must do if it is satisfied that this will be in the interests of good industrial relations or if there is evidence that union members do not or may not want the union to be recognized), the union can be recognized only if the union is supported by both (i) the majority of workers voting; and (ii) at least 40% of the workers in the bargaining unit. The Employment Rights Bill will remove requirement (ii), thus allowing a recognition vote to be carried by a simple majority.
Paid time off for union representatives
As the law stands, trade union officials and learning representatives who are employees are entitled to reasonable paid time off for their duties and approved training. The Employment Rights Bill introduces a new similar right to paid time off for “equality representatives”, which is a new class of elected union representative with a remit to eliminate discrimination, harassment, and victimisation; to promote equality of opportunity; and to foster good relations between employees across lines of race, sex, age, religion/belief, etc.
Equality representatives, like the other classes of representative, will be able to make a complaint to an Employment Tribunal if the employer fails to provide reasonable time off for carrying out their duties.
Whenever any union official, learning representative, or equality representative makes such a complaint, the burden of proof will be on the employer to show that the amount of time off the employee proposed to take was not reasonable.
Facilities provision for union representatives
The Employment Rights Bill will introduce a requirement on employers to provide “such accommodation and other facilities … as is reasonable in all the circumstances” for trade union officials, learning representatives and equality representatives to carry out their duties. There will be a new right to make a complaint to an Employment Tribunal if the employer fails to provide facilities.
The provision of facilities will be governed by a statutory code; it is likely that the Acas Code of Practice on time off for trade union duties and activities will be updated to include this. There is current (non-statutory) Acas guidance which suggests that, depending on the employer’s resources, reasonable provision will include:
Meeting space
Training and e-learning facilities
Telephone, email, internet and intranet access
Noticeboard usage
Confidential space for dealing with employee disciplinaries, grievances, etc.
Access to workers at other locations
(Possibly, depending on the volume of work) dedicated office space for union matters
Ballots for industrial action: lowered thresholds, reduced information requirements, introduction of electronic voting
Prior to the enactment of the Trade Union Act 2016 (the 2016 Act), ballots for industrial action required at least 50% support from trade union members who voted. However, the 2016 Act introduced two additional requirements:
At least 50% of all eligible trade union members must vote.
Additionally, in “important public services” (which include health, school education, fire, transportation, and border security) at least 40% of members entitled to vote must vote in favour of industrial action
These requirements will both be repealed. This means that, once again, a simple majority of trade union members voting will carry a motion for industrial action.
The 2016 Act also introduced requirements that the voting papers include:
A summary of matters in dispute to which the industrial action relates
If action short of a strike is balloted, a statement of the specific type(s) of action
The periods within which each industrial action balloted is expected to take place
These requirements will be repealed. This means that, once again, a trade union can simply ask members whether they support either a strike or action short of a strike, with no further information given.
If industrial action is mandated, the union must give the employer the requisite written notice (including details of the affected workplaces and employees, and any relevant dates) before any action is commenced. Since the enactment of the 2016 Act, the required notice period has been 14 days. This will be reduced to 7 days (which was the pre-2016 Act position). As part of the Making Work Pay consultation, the Government is also inviting views from employers on simplifying the information that unions are required to give to employers before taking industrial action (see below for more details).
The Government is also intending to introduce electronic balloting for statutory trade union voting (e.g. for industrial action). This will be considered by a specially convened group of experts and stakeholders in the Making Work Pay consultation (see below).
Union supervision of picketing
As the law stands, a union will lose its immunity from civil liability if it does not comply with the “peaceful picketing” provisions. These provide, in summary, that workers can only attend picket lines at or near their place of work, that union officials can only attend at or near workplaces where their union is represented, and that in either case, attendance must be “only for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working”.
The 2016 Act introduced a number of additional requirements on unions with regard to picketing, the failure to comply with which will result in the loss of their civil immunity. In summary, the union is required to appoint one of its officials as a picket supervisor who must provide details of the picket to the police in advance, provide a letter of authorisation from the union to the employer and be visibly identifiable and either present or readily contactable on the day of the picket. The Employment Rights Bill will repeal all of these requirements, but will leave in place the “peaceful picketing” requirements outlined in the previous paragraph.
Protection against detriment for taking industrial action
While employees have a right not to be dismissed for taking protected industrial action, recent case law has established that employees and workers otherwise have no protection against detrimental treatment by their employer generally. This meant, for example, that an employee who was suspended and disciplined for organising strikes had no remedy against her employer, since she was not actually dismissed. The Supreme Court has declared that this position is incompatible with the right to freedom of peaceful assembly and association under the European Convention on Human Rights – but it has no powers to remedy this. The Government now proposes to resolve this situation by making it unlawful to subject a worker to a detriment for the sole or main purpose of penalizing them for taking part in protected industrial action or for preventing or deterring them from doing so. The Government may also make regulations prescribing certain actions as detriments.
Workers will be able to enforce this right by bringing a complaint to an Employment Tribunal, which will make a declaration and may order compensation where a complaint is well founded. The burden of proof will be on the employer to show what its sole or main purpose was in the actions or omissions which are the subject of the complaint.
Expanded protection against dismissal for taking industrial action
As the law stands, employees will be regarded as automatically unfairly dismissed if, in summary:
The principal reason for their dismissal was that they took protected industrial action; and
They were dismissed:
within 12 weeks of the commencement of the industrial action (discounting any days on which they were locked out by the employer); or
after 12 weeks from commencement, but they had ceased to take part before the 12-week mark; or
after 12 weeks from commencement, and they had not ceased to take part, but the employer had not taken reasonable steps to resolve the dispute.
The Government intends to repeal all the provisions under heading (2). This means that if the principal reason for dismissal is participation in protected industrial action, the dismissal will be held by a Tribunal to be automatically unfair, regardless of when the dismissal took place or other circumstances.
Minimum service levels repealed
The Strikes (Minimum Service Levels) Act 2023 will be repealed in its entirety. This Act created a power for employers in key public-sector services to prevent specified workers from striking; the union had to comply in order to retain its civil immunity. This Act will be repealed on the day the Employment Rights Bill comes into effect, and employers are “strongly encouraged” by the Government to refrain from exercising their power to impose a minimum service level in the meantime.
Additional blacklisting prohibitions
Currently, it is unlawful to compile, use, sell or supply a blacklist, which is a list of current or former trade union members (or other participants in union activities) which is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to the recruitment or treatment of workers.
The Employment Rights Bill makes provisions to broaden unlawful activities in relation to blacklists. Firstly, lists compiled for use by other parties – not just employers and employment agencies – will be brought within scope. Secondly, the Secretary of State will have a new power to make further regulations prohibiting the use, sale or supply of blacklists, which almost certainly implies that, if an employer uses a de facto blacklist, it will no longer have a defence if it was not compiled for the purpose of the prohibited use. There is also a provision for introducing vicarious liability for those who “cause” persons to act unlawfully in relation to blacklists, for example by engaging the use of a blacklist via a contractor. More details will become clear when the relevant regulations are published.
Government consultation
On 21 October 2024, the Government opened the consultation Making Work Pay: creating a modern framework for industrial relations. This invites views from employers and individuals on matters including:
simplifying the amount of information unions are required to provide to employers in industrial action notices
strengthening provisions to prevent unfair practices during the trade union recognition process
removing the 10-year ballot requirement on political funds
securing a mandate for negotiation and dispute resolution
extending the expiry of the strike mandate
reducing the industrial action notice period
updating the law on repudiation and prior call
the enforcement mechanism for right of access
The consultation closes on 2 December 2024 and can be accessed here.
For more information, please contact the team at Synchrony Law.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Footnotes
[1] Factsheet: Trade Unions in the Employment Rights Bill. Retrieved on 14 November 2024 from: https://www.gov.uk/government/publications/employment-rights-bill-factsheets
[2] Making Work Pay: Consultation on creating a modern framework for industrial relations. Retrieved on 14 November 2024 from: https://ditresearch.eu.qualtrics.com/jfe/form/SV_6hEZ1AHthC0eB9k