There are a number of sweeping reforms in respect of trade unions in the Employment Rights Bill (the Bill) and these reflect the government's commitment "to strengthen workers' rights" by "ensuring that people are more empowered in the workplace". The Bill will "remove unnecessary restrictions on trade union activity" and ensure that "industrial relations are based around good faith negotiation and bargaining".
The government has already committed to repealing the Strikes (Minimum Service Levels) Act 2023, and the Bill provides that this will happen automatically on the day that it receives Royal Assent. The Minimum Service Level legislation was introduced by the previous Conservative government to enable employers to require a minimum level of service to be provided during a strike in certain public services.
The government has also made it clear that, following the High Court ruling in R (ASLEF and others) v Sectretary of State for Business and Trade in August 2023, employment businesses are prohibited from providing agency workers to cover the duties normally performed by a worker who is taking part in strike or other industrial action.
What are the key changes in the Bill?
The Bill contains a number of different measures in relation to the government's shake-up of existing trade union law. We discuss the key changes below.
Right to a statement of trade union rights
There is currently no explicit requirement within existing legislation for employers to actively inform their workers of their right to join a trade union, either at the start of employment or on an ongoing basis.
Under the provisions in the Bill, employers will be required to provide workers with a written statement confirming their right to join a trade union. Specific details, including the frequency and manner of communication, will be set out in secondary legislation following consultation.
Right of trade unions to access the workplace
There is no general right for trade unions to access workplaces for recruitment and organisation of members. Trade unions can currently only come onto an employer's premises if the employer agrees, or it is ordered by the Central Arbitration Committee (CAC) ahead of a statutory recognition ballot.
Unions will be able to request access to the workplace to meet, recruit or organise workers to facilitate collective bargaining, but not to organise industrial action. The Bill sets out a framework for how a request should be made by a trade union and considered by an employer. On receiving an access request, an employer can either agree or object to the request; this is known as the response notice.
If both parties agree on access terms, then the CAC is notified and the agreement is recorded. If no agreement is reached within the response period, either party can refer the case to the CAC for a decision on access. The CAC's decision on determining whether access should take place or not will be subject to principles in the Bill, namely that access should not unreasonably interfere with the employer's business, employers should take reasonable steps to facilitate access, and access should only be refused entirely where it is reasonable in all the circumstances to do so. The CAC must consider the needs of both employers and unions and, if it decides that the union is to have access, it will specify the terms on which this access should occur.
The proposed enforcement mechanism for access agreements is via complaints to the CAC within three months from the date of conduct. Appeals on CAC determinations, declarations, or penalty orders can be made to the Employment Appeal Tribunal on points of law.
Trade union recognition
Currently where an employer refuses to recognise a trade union voluntarily, the union can apply to the CAC to obtain statutory union recognition. The union must show the CAC that they have 10% membership of the proposed bargaining unit and that they have evidence that a majority of the employees are in favour of 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 provides that instead of the requirement for a union to have the support of at least 40% of the workforce in the proposed bargaining unit in a trade union recognition ballot, it will just need "a simple majority" of those voting in order to win the ballot. There will also be no need for a union to demonstrate on application to the CAC that they are likely to win the recognition ballot; it will only have to show the CAC that it has 10% membership of the proposed bargaining unit for its application for recognition to be accepted by the CAC. The government has said that it will consult on plans to lower the membership threshold to as low as 2%.
Enhanced facilities provided to trade union representatives and members
Currently employees who are also trade union representatives can take paid time off for the purpose of carrying out various trade union duties and to undertake training. The amount of time, purpose for taking it and any conditions attached to time off for union duties are limited to what is "reasonable in all the circumstances" having regard to any relevant provisions of the Acas Code of Practice on time off for trade union duties and activities.
The position of union representatives will be strengthened under the Bill. A "presumption" will be established that the employee's assessment of the time required is reasonable. Where an employment tribunal claim is brought by a trade union official or representative for a denial of reasonable time off for union duties it will be up to the employer to demonstrate that the time off requested was unreasonable.
Where employees are permitted to take time off, they will also be provided with reasonable access to facilities (such as office space and access to the internet) to enable them to carry out their duties or undergo training.
The Bill formalises the role of "trade union equality representative" (it is not currently recognised in law) and also provides this new statutory category of representative with a right to time off and to access facilities. The duties of the representative will include promoting equality in the workplace, providing advice and support to union members on equality matters, and consulting with the employer on equality matters.
Balloting
Currently at least 50% of the trade union members entitled to vote in a ballot on industrial action must participate in order for the ballot to be valid (with a simple majority voting in favour) and in important public services, namely health, education, fire, transport and border security, at least 40% of all union members entitled to vote in the ballot must vote in favour of a proposal for a ballot to be successful.
Under the Bill all that will be required for a ballot to be successful will be a simple majority of those voting. There will be no requirement for any level of turnout or reference to the proportion of workers entitled to vote, including for public services.
Protection for taking industrial action
Workers are protected from being subjected to detriment related to trade union membership or taking part in trade union activities by virtue of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Supreme Court's decision in Secretary of State for Business and Trade v Mercer earlier this year found that section 146 is incompatible with Article 11 of the European Convention on Human Rights (right to freedom of assembly) insofar as it fails to provide protection for detriments, short of dismissal, for taking part in industrial action.
Workers can also claim unfair dismissal if they are dismissed for taking protected industrial action and the dismissal takes place within 12 weeks of the worker starting the industrial action.
The Bill provides that a worker has the right not to be subject to detriment of a prescribed description (this will be set out in secondary legislation following consultation) by an act, or any deliberate failure to act, by the worker's employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so. In other words, it corrects the gap in existing protection highlighted by the Supreme Court in Mercer. The Bill also removes the 12-week period that an employee is protected for when taking industrial action, where the reason for the dismissal is taking protected industrial action.
Blacklisting
Blacklisting in an employment law context is the practice of compiling information on individuals concerning their trade union membership and activities, with a view to that information being used by employers or employment agencies to discriminate against those individuals in relation to recruitment or treatment.
The Bill will extend these prohibitions to lists that are not prepared for the purposes of discrimination, but that are subsequently used for that purpose. The government will then bring forward secondary legislation and guidance to make it clear that blacklisting prohibitions extend to lists created by AI.
Consultation
The government issued a consultation on 21 October, 'Consultation on creating a modern framework for industrial relations'. This closes on 2 December.
The consultation is quite wide-ranging and seeks views on a number of different topics. Notable additional policy proposals include:
- Reducing the notice period needed for industrial strike action from 14 to 7 days;
- Extending the expiry of an industrial action mandate from 6 to 12 months; and
- Proposing the introduction of secure and private electronic balloting, potentially scrapping the need for a postal ballot.
Practical points
There are a few key points to bear in mind in relation to these reforms:
- You need to be aware that you will have to inform all workers of their right to join a trade union.
- The proposals to simplify trade union recognition will make it easier for unions to secure recognition so it's likely that voluntary and statutory recognition applications from unions will be on the rise.
- For those of you who don't have existing recognition agreements in place, think about reviewing your existing arrangements for staff representation to argue against the need for future trade union involvement i.e make sure your staff forums are effective and staff have a voice.
- Think about adopting proactive industrial relations strategies to make sure that workforce concerns can be addressed without the need for industrial action.
- Be aware that the rights of trade union representatives and members will be enhanced under the Bill's provisions and ensure that you keep on top of these new rights to avoid the risk of legal claims.
- You will have to prepare for increased union involvement in the workplace!