Industrial action and ballots

There is a requirement that at least 50% of trade union members entitled to vote must do so for an industrial action ballot to be lawful. In addition, in important public services (as defined in the Trade Union Act 2016) trade unions must obtain the support of at least 40% of all union members entitled to vote.

These turnout thresholds will be removed and so an industrial action ballot will be valid provided a simple majority votes in favour.

This will come into force two months after the ERB receives Royal Assent.

Sections 5 and 6 of the Trade Union Act 2016 sets out the information that must be included on a ballot paper and requires unions to specify how many members were entitled to vote and whether minimum thresholds have been met.

This clause will amend the Trade Union and Labour Relations (Consolidation) Act so that sections 5 and 6 are repealed. This will mean that a trade union will be required to ask its members which type of industrial action they want to take part in and then the type of action the majority of members vote for will be the protected action.

This will come into force two months after the ERB receives Royal Assent.

Section 4 of the Trade Union Act 2016 required the Secretary of State to commission an independent review of electronic balloting for all industrial action. This review was published and recommended that electronic balloting be tested. A response was never published and so no action was taken.

This will repeal section 4 of the Trade Union Act 2016 although the Government (as noted in its factsheet) is committed to introducing ‘modern and secure electronic balloting’ and promises to launch a working group ‘with full rollout implemented following Royal Assent of the Employment Rights Bill’.

This section will come into force two months after the ERB receives Royal Assent.

Section 8 of the Trade Union Act 2016 requires that the notice a trade union must give an employer of industrial action (post ballot) is 14 days.

This notice provision will be reduced to 7 days.

This will come into force two months after the ERB receives Royal Assent.

There are certain requirements placed on trade unions to ensure they are protected from certain liabilities. This included appointing a picket supervisor and giving the Police the supervisor’s name and location of the picket.

These requirements will be removed.

This will come into force two months after the ERB receives Royal Assent.

There is a gap in the law as demonstrated by the Supreme Court’s decision in Secretary of State for Business and Trade v Mercer. The court demonstrated that there is no protection against sanctions (short of dismissal) taken against an employee who engages in lawful strike action.

This section will give an employee this protection against any detriment they may suffer at the hands of their employer where the specific purpose of that treatment was to deter the employee from engaging in industrial action or to penalise them for continuing to do so. The Government has promised regulations which will outline what constitutes a ‘detriment’.

We have no specific date for this change to come into force and await draft regulations on the definition of a detriment.

Employees who are taking part in lawful industrial action are protected from dismissal for a protected period. This period is currently 12 weeks.

This 12-week limit will be removed and so the employee will be protected for the length of the strike action.

We have no specific time frame for this change.

The unpopular Strikes (Minimum Service Levels) Act 2023 gives the Government the power to set minimum service levels during strikes in essential services and certain sectors.

This Act will be repealed as soon as the ERB is passed.

In outsourcing scenarios, where there are ex public sector workers and private sector workers, they may work alongside each other on different terms and conditions; a two-tier workforce.

The ERB proposes changes to the Procurement Act 2023 so that that regulations will be introduced which will require contractors to offer all staff working on an outsourced contract the same terms as staff employed by the contracting public authority. This could have a huge impact on the costings of outsourcing and challenge the premise that outsourcing of services cuts costs.

The consultation and draft code are expected relating to outsourcing public service contracts. We expect this in 2025.