Industrial action and ballots

Industrial action is only lawful if 50% of trade union members entitled to vote have done so (turnout threshold) and the majority of those union members who voted did so in support of industrial action. In addition, in important public services (as defined in the Trade Union Act 2016) where there a vote on strike action, the turnout threshold remains 50% and at least 40% of those entitled to vote must be in favour of strike action (support threshold).

The turnout and support thresholds will be removed and so an industrial action ballot will be valid provided a simple majority votes in favour and this will apply whatever the sector. The House of Lords amended the Bill to bring back the turnout threshold, however, the House of Commons rejected this amendment in September 2025 and so its removal remains in the ERA.

Following amendments made to the ERA in March 2025, the support threshold was removed with effect from 18 February 2026 (two months after Royal Assent), however, the removal of the turnout threshold will come into force via regulations which have yet to be published. We understand this is to align this change with the introduction of e-balloting and we are waiting a consultation document on that.

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.

The ERA will amend the Trade Union and Labour Relations (Consolidation) Act so that sections 5 and 6 are repealed.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 came into force on 18 February 2026.

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.

The ERA will repeal all 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’.

The updated February 2026 roadmap notes that measures regarding electronic and workplace balloting for statutory trade union ballots will take effect no earlier than August 2026. This has pushed it back from the original timeline which stated it would take effect from April 2026.  Electronic and workplace balloting for recognition and derecognition ballots will come into force 2027.

The Consultation on this provision was published on 23 October 2025 and closed on 18 December 2025.  It can be found here.

The Government launched a consultation on what safeguards are necessary to prevent interference in electronic balloting.  More details can be found here.

On 22 June 2026, the Government published its response to the consultation and confirmed the following; initially, from August 2026, electronic and hybrid voting will be available for industrial action ballots, union elections, ballots on union political fund, ballots on amalgamation of unions and ballots on transfers for engagement between trade unions. Workplace balloting will only be available in ballots for industrial action. Sometime in 2027, changes will be made to introduce electronic and hybrid voting during recognition and de-recognition ballots

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.

Originally, the ERA reduced this to 7 days. Amendments made in March 2025 increased that to 10 days.

This came into force on 18 February 2026.

A a trade union is required to provide information to an employer ahead of an industrial action ballot as to the number of employees concerned in each category or workplace and to provide an explanation of how the total number of employees concerned was determined by the union. Similarly, the union must also provide information to an employer ahead of any industrial action as to the number of employees in each category that are expected to take part in the action.

Amendments made in March 2025 have simplified what information the trade union will need to supply in both these circumstances.

This came into force on 18 February 2026.

An industrial action ballot is effective for six months after the ballot (it can be increased up to 9 months by agreement between the employer and trade union).

Amendments made in March 2025 to the ERA extends this time period to 12 months without the possibility of any extension.

This came into force on 18 February 2026.

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 came into force on 18 February 2026.

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.

The ERA 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 originally promised regulations which to outline what constitutes a “detriment”. However, following its consultation (see below) it announced on 22 June 2026 that “detriment” would mean all detriment and that it would not limit the definition.

Draft regulations were laid before Parliament on the 25 June 2026 and this change will come into effect from 30 October 2026.

The Government published a consultation on 26 February 2026 which closed on 23 April 2026.  The purpose of the consultation was to address whether the definition of detriment should be a narrow one as further detailed in regulations or a wider interpretation, consistent with other legislation.  The Government preferred option is the latter.

The response to the consultation was published on 22 June 2026 confirming that detriment would have a wider interpretation.

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.

This came into force on 18 February 2026.

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 was repealed on 18 December 2025 – the date the Act received Royal Assent.