Published prior to this year’s general election, Labour’s Plan to Make Work Pay, made it clear that a Labour government wanted to strengthen trade union powers. With the publication of the Employment Rights Bill, we have a clearer understanding of the government’s proposed reforms. In this article we look at those changes that will be of most interest to employers.

Background

Prior to the election Labour stated that its aim was to “update trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations based around good faith negotiation and bargaining”.

The previous Conservative governments had introduced the Trade Union Act 2016, the Minimum Service Levels (Strikes) Act, and Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. This legislation introduced a number of significant changes including:-

• minimum turnout requirements for industrial action ballots
• greater obligations on trade unions prior to industrial action
• time limits on the mandate ballots give for industrial action
• the ability of the government to make regulations providing for minimum service levels during strike action in “relevant services” e.g. railway services, NHS, and border security, and,
• removal of the prohibition on employment businesses supplying replacement workers to employers during industrial action.

In opposition Labour vowed to revoke this legislation. As it was, the removal of the prohibition on providing replacement workers during industrial action was found to be unlawful in 2023 so it was not necessary to revoke this legislation. However, whilst the new Bill removes the Minimum Service Levels (Strikes) Act in its entirety, it does not completely revoke the Trade Union Act 2016

Overview

In short it could be said that the proposed reforms in the Bill are designed to make it easier for trade unions to gain formal recognition in a workplace and generally make the regulatory environment more favourable to unions, make it easier for unions to conduct industrial action ballots and gain a mandate from members for industrial action, and to provide greater protection for employees involved in trade union activity or industrial action. Some of the reforms are more relevant to trade unions and outside the scope of this article but the key changes that will be of relevance to employers are:

• The Bill proposes changes that should make it easier for trade unions to gain access to workplaces and ultimately gain formal recognition within the workplace, by setting out a formal (and complicated) process for requesting access to a workplace.
• The Bill also strengthens the existing right to reasonable paid facility time for union representatives to carry out their duties, and requires employers to provide union representatives with reasonable access to facilities such as office and meeting space and internet/intranet access to enable them to carry out their duties or undergo training.
• A new statutory right for trade union equality representatives to take reasonable time off during working hours to carry out their equality related activities.
• The previous government had introduced a requirement that for a ballot to mandate industrial action there was a requirement that at least 50% of the eligible members must have voted. There was also an additional requirement that in “important public services” that in addition to the 50% turnout requirement, at least 40% of those entitled to vote must have voted in favour of industrial action. The Bill will revoke this requirement, meaning a simple majority of those that choose to vote in a ballot is required to approve industrial action.
• A reduction in the period of notice a trade union must give an employer of industrial action will be reduced from 14 to 7 days, which returns to the position prior to 1 March 2017.
• The ability of the Secretary of State to set minimum service levels for “relevant services” will be revoked.
• The Government intends to consult on simplifying the amount of information that unions are required to provide in industrial action notices.
• The Trade Unions Act 2016 provided that a mandate for industrial action following a ballot would automatically expire six months from the ballot date (or nine months if agreed by the union and employer). The Bill does not propose to repeal this provision but the Government is consulting on whether the time limit should be extended from six to 12 months.
• Prior to this year an employee was protected from dismissal for taking lawful industrial action but there was no protection against a detriment short of dismissal. Following a Supreme Court decision earlier this year this was found to be unlawful. As such the Bill inserts a new section that will provide employees with protection from detriment (short of dismissal) for taking industrial action.
• The Bill simplifies the rules which determine when a dismissal for taking industrial action will be unfair. These current rules depend on whether the industrial action was unofficial or official and, if official, whether it was protected or not. The Bill simplifies the rules meaning an employee will be automatically unfairly dismissed if the reason for their dismissal is that they took protected industrial action.

 Comment

A number of these changes take us back to the pre-2017 position and other changes are in line with arguments the unions and Labour have made for many years. However, the Bill will also revoke some of the more controversial changes made by recent Conservative governments.

When the changes come into force it is likely that trade unions will in the first instance use them to promote union membership within the workplace, with a view to gaining recognition. Formal recognition requires the employer to engage in collective bargaining with unions about pay and other terms of employment, which Labour sees as a positive step towards “increased cooperation between employers and unionised workers, leading to beneficial outcomes for the economy.”

If you’re a business and would like more information about this issue, please contact Michael McNally Michael.mcnally@pannonecorporate.com