Creating a modern industrial relations framework: trade union rights
The Bill provides for a number of specific measures relating to trade union rights including:
A requirement for workers to be given a written statement advising them of their right to join a trade union.
Provisions for "access agreements" allowing union officials to access the employer's workplace for the purposes of meeting, representing, recruiting or organising workers or facilitating collective bargaining (but not to organise industrial action).
Simplifying the thresholds for trade union recognition
A right to complain that there has been a failure to provide access to facilities
Widening the power of the Secretary of State to make regulations prohibiting the compilation of lists for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers to cover use by those who are not employers or employment agencies
Implementation Status (November 2024)
Part of the Employment Rights Bill.
Regulations.
Consultation.
Acas required to issue a Code of Practice on time off and facilities.
- Action
Employers will need to ensure that an appropriate statement is included in the employment contract or other written particulars provided to employees along with existing "section 1" obligations..
Given the prospect of trade unions seeking actively to gain recognition, including requests to rights of access, consider ho will have responsibility in the business for dealing with a request and the legal and practical considerations when responding.
- It will be important for employers to cement relations with any existing staff forum. Where a staff forum is not in place, employers should consider whether it is appropriate to establish one as a forum for communication with staff.
- In detail
Employers will be required to give workers a written statement advising them that they have a right to join a trade union at the same time as providing the worker's section one statement (and at other prescribed times). Regulations will prescribe the information that must be provided, the form which the statement must take and the manner in which the statement must be given. Where an employee brings a successful tribunal claim on another ground, a failure to provide a statement will give rise to an additional compensation award.
Listed trade unions will be able to enter into access agreements with employers. Where an employer fails to respond to a request for an access agreement or agreement is not reached, an application may be made to the Central Arbitration Committee (CAC). The CAC will also determine alleged breaches of access agreements or prevention of access by a third party.
The Bill will remove the requirement for a union to demonstrate that there is likely to be a majority support for trade union recognition in the bargaining unit, as well as the requirement for a 40% support threshold from recognition ballots. Only a simple majority of those voting is therefore needed for the CAC to issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
The Bill enables the current threshold that at least 10% of the workers in the bargaining unit are members of the unit for the CAC to accept a trade union application (and at other stages of the recognition scheme) to be replaced with a test of anywhere between 2% and 10%. The government will consider this potential change to the union membership requirement following consultation.
The Bill also widens the power of the Secretary of State to make regulations prohibiting the compilation of lists to those which are used for the purposes of discrimination, despite not having been prepared for that purpose originally and by removing wording that currently limits to ones which are compiled with a view to being used by employers or employment agencies.
- Impact
The inclusion of a statement regarding trade union membership alongside the existing section one particulars is identified by the government as a key part of its "commitment to strengthening workers' voices in the workplace, enhancing their representation and ultimately providing improving working conditions through increased trade union membership and participation".
In relation to the proposals around access arrangements, the Bill expressly refers to "physical" access; digital access would therefore not currently be covered but may be an important right for trade unions longer term to communicate with remote and hybrid workers.
However, for unrecognised unions the right of access will provide an opportunity to recruit and organise within a workplace with the aim of gaining recognition.
While the proposals around trade union recognition will make it easier for trade unions to gain recognition in respect of a bargaining unit, it is questionable how effective the trade union be where recognition is achieved with only a low level of actual support.
Creating a modern industrial relations framework: industrial action
The Bill makes a number of proposals in relation to industrial action including:
Repealing the Strikes Act 2023 which provides for minimum service levels in specific sectors.
Providing that only a simple majority of those voting for a ballot conducted by trade union for industrial action is needed and with no requirements for any level of turnout.
A trade union will only be required to ask members on a ballot paper which type of industrial action they want to take in i.e. strike or action short of strike. Other requirements introduced in the Trade Union Act 2016 will be removed.
The minimum period of notice that a union must give an employer before industrial action will be returned to seven days.
An employee will be automatically unfairly dismissed where the reason (or principal reason) for the dismissal is that the employee took protected action (as opposed to limiting the right to protected action during a protected period).
An employee will also be protected from suffering a detriment for taking protected action.
Implementation status (November 2024)
Part of the Employment Rights Bill.
A consultation has already been published on some aspects and further consultations and regulations will be necessary, save for the removal of the minimum service level provisions which will come into force on the day that the Employment Rights Bill receives Royal Assent.
The Bill also makes a technical amendment to remove a provision in the Trade Union Act 2016 which required the Secretary of State to commission an independent review of electronic balloting for all industrial action. However, the government has stated that "it is committed to introducing the use of modern and secure electronic balloting for trade union statutory ballots. We will launch a working group with stakeholders in due course including cyber security experts and trade unions with full rollout implemented following Royal Assent".
- Action
It will be easier for trade unions to organise industrial action and employers will need to prepare for this possibility and pre-empt where such action may arise, particularly in light of the shorter notice requirements.
Where protected industrial action takes place, it will be important for managers to be aware that not only is an employee protected from dismissal but also, when the new right comes in, from being subjected to a detriment short of dismissal.
- In detail
Many of the proposals simply repeal measures which were put in place by the Trade Unions Act 2016.
A new protection is proposed to address a decision of the Supreme Court that a worker is not currently protected from being subjected to a detriment in relation to protected industrial action. Regulations may prescribe what will be considered a detriment for these purposes. Where an individual successfully claims that they have been subjected to detriment short of dismissal in circumstances covered by the new provisions (when in force), a tribunal may make a declaration and award compensation of "an amount which the tribunal considers just and equitable in all the circumstances".
- Impact
A trade union must provide an employer with notice of industrial action within the "appropriate period" after it has secured a ballot mandate and before any action is taken. Since 2017, minimum period of notice has been 14 days; the Bill will however restore the position to that pre-2017 where a 7 day notice period applied.
At present in addition to a majority of union members voting in favour, at least 50% of all eligible members must have voted and in ballots of workers engaged in "important public services", additionally at least 40% of those entitled to vote must have voted in favour of the action.
The Supreme Court's decision in Mercer established that the existing statutory provisions fail to provide any protection against sanctions short of dismissal intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union and, as a result, is incompatible with Article 11 ECHR. The Employment Rights Bill therefore seeks to resolve this by including specific provisions protecting against suffering a detriment.
Protection against dismissal for pregnant employees up a period following her return
In Make Work Pay, the government committed to making it unlawful to dismiss a woman "who is pregnant for six months after her return, except in specific circumstances".
Existing statutory provisions permitting regulations to be made about redundancy during or after a protected period of pregnancy or maternity leave (and likewise in respect of other types of leave, including adoption leave and shared parental leave) will be amended to enable regulations to provide protection in respect of "dismissal" throughout the same period.
Implementation Status (November 2024)
Part of the Employment Rights Bill.
Consultation will be carried out and further detail set out in regulations.
"The majority of reforms will take effect no earlier than 2026".
In relation to extending dismissal protection for those taking adoption leave and shared parental leave, a decision will be taken following the consultation on whether and/or how these powers should be exercised.
- Action
- Managers will need to be aware of who is protected, how the protection applies and for how long it applies and how this interacts with the new rules, applying from April 2024, which provide for those who are pregnant and those returning from specific types of statutory family leave to be given priority for suitable alterative employment on redundancies.
- Any extension of protection will reinforce the need for managers to ensure that performance concerns are managed appropriately and constructively (and without discrimination).
- As well as maternity, shared parental leave and adoption, the Bill would allow the new protections to apply to those who are on neo-natal leave and paternity leave following bereavement, both of which are not yet in force. We may see these new leave rights taken forward as part of the government's review of the parental leave system.
- In detail
- Existing statutory provisions which allow for regulations to make provision about redundancy during or after a protected period of pregnancy or maternity leave will be amended to enable regulations to provision for "dismissal" throughout the same period.
- Relevant statutory provisions in respect of other types of leave - adoption leave, shared parental leave, neonatal care leave (not yet in force) and bereaved parents paternity leave (not yet in force) - will likewise be amended.
- Impact
- Currently employees who are pregnant and for 18 months after childbirth, must be given first refusal of any suitable alternative employment on redundancy. These protections also apply to individuals on adoption leave or shared parental leave (subject to an individual taking a minimum amount of shared parental leave).
- No further detail is given on what regulations may be made under the revised power save for the government's stated commitment to ban the dismissal of pregnant employees for six months after their return to work except in specified circumstances. However, the impact assessment states that "for illustrative purposes, approaches that could be considered include retaining certain reasons for dismissal (e.g. conduct) and/or setting a certain standard within those reasons (e.g. gross misconduct), and/or considering when and how dismissals are defended".
- The impact assessment identifies that the policy might lead to a reluctance to employ women or lead to employers delaying dismissals until the protection period is over; "the consultation will be critical to finding the right balance between protecting women and preventing such unintended consequences".
