Employment Rights Bill – a new era for industrial relations?

The Employment Rights Bill (first published in October 2024) has recently completed the Committee Stage in the House of Commons during which the Government introduced numerous amendments to the Bill. 

In this blog post, we take a closer look at the Government’s detailed amendments relating to the way trade unions operate in the UK, introduced following its consultation on “Making Work Pay: creating a modern framework for industrial relations” which ran from October to December 2024. 

The new proposals cover wide-ranging aspects of the industrial relations framework, from strengthening protections against unfair practices in the recognition process to simplifying information requirements for industrial action ballots. The Government has confirmed its commitment to “resetting and modernising our industrial relations framework”, with the aim of updating trade union legislation which “has presented a significant barrier to effective, positive industrial relations in the UK”. 

But what do these proposals mean for employers? We examine the new amendments in more detail below.

The recognition process

Against the background of high-profile allegations of employers adopting unfair practices (such as mass hiring) to attempt to thwart the recognition process, the Government has introduced the following measures: 

• The scope of the 2005 Code of Practice: access and unfair practices during recognition and derecognition ballots will be widened from covering only the ballot process to covering the entire recognition process (from the time at which an application is accepted by the Central Arbitration Committee (CAC)).
• Employers will be required to share the number of workers in the proposed bargaining unit within 10 working days of an application for recognition being submitted. This number will then remain fixed for the purposes of the recognition process, with the aim of preventing mass hiring to make it more difficult for the union to succeed in achieving recognition. Currently, where a bargaining unit is not agreed between the employer and the union, the employer must provide the above information within five working days, but the parties have up to 20 working days to try to agree a bargaining unit before the CAC will step in. It then has a further 10 working days to make a decision. During this whole period, employers can in principle continue to hire workers into the proposed bargaining unit who will count for the purposes of the recognition application.  
• In an unfair practice claim unions will no longer be required to show that the use of the practice influenced the workers’ voting. Unions will now only need to show that an unfair practice has occurred.
• The time limit for bringing an unfair practice complaint will be extended from one to five working days after the ballot has closed. 
• Independent unions will be permitted to apply for recognition even where the employer has voluntarily recognised a non-independent union already.

Interestingly the Government recognised in its consultation response that practices such as mass recruitment are not common. Employers may therefore argue that they are being punished unfairly for the behaviour of a few. In particular, the requirement to disclose the number of workers within the bargaining unit will create an additional administrative burden. We note, however, that this requirement would not prevent employers hiring new staff, but that those new members of staff would not count towards the bargaining unit for the purposes of the recognition process. 

The proposal on independent unions has the potential to cause disruption for employers who may have built strong relationships with existing unions and want to avoid the issues that come with negotiating with multiple unions.

Right of access

Some of the most controversial proposals from the perspective of employers have been the Government’s amendments in relation to unions’ right of access to the workplace. In summary, the Government is proposing the following:

• An access agreement must be agreed within 20 working days of the CAC accepting a union’s recognition application. If this is not agreed, the CAC can adjudicate and issue an access order.
• A new dispute resolution process led by the CAC will be introduced to facilitate negotiations between the parties. 
• A single person within the CAC can make a decision on whether access should take place, rather than a tripartite CAC panel, where the agreement meets prescribed requirements. 
• The Secretary of State will have the power to set (in secondary legislation) a new framework for fines for non-compliance to be applied by the CAC to enable better enforcement of the access requirements. This will be consulted on further in due course.
• The Government will have the power (in secondary legislation) to allow access agreements to cover digital access. This will make it possible for an access agreement to cover solely digital access. 

Many employers have expressed concerns that these amendments give unions an “unfettered” right of access to workplaces. These changes do present a significant shift from the current regime, creating an expedited route for unions to achieve access and introducing penalties for employers who fail to comply with the process. 

The Government has so far provided very little information on how it intends to extend the regime to cover digital access, although it does give an example of a trade union being permitted to post information on an employer’s intranet pages. Digital access has the potential to allow unions to reach much wider groups of employees and it is unclear how extensive this access will be.

Industrial action

The Government is also proposing various amendments relating to the process for conducting industrial action. These include:

• Repealing the 50% industrial action ballot turnout threshold so no specific level of turnout is required. This will be implemented by secondary legislation at a later date.
• A reduction in the notice required to be given by unions to employers of industrial action from 14 days to seven days. 
• An extension to the expiration date for an industrial action mandate from six to 12 months. 
• The removal of the requirement for a union to provide information 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.

The Government has also committed to launching a working group on e-balloting in the coming months.

While these proposals make it more straightforward for unions to take industrial action, some aspects of these amendments may be welcomed by employers. Measures such as e-balloting make ballots more accessible and would likely increase turnout, which arguably requires unions to demonstrate a stronger mandate for any industrial action taken. The simplification of notice requirements is likely to reduce the number of challenges to industrial action, but this would also reduce the time and money employers spend on challenging procedural points, allowing them to focus on the substantive dispute. 

What does this mean more generally for industrial relations in the future?

While the proposed amendments could make it easier for unions to achieve both recognition and access, and for unions to mount industrial action, the amendments also reduce the level of bureaucracy involved in union processes which in turn could benefit employers. 

Assuming that these amendments are included in the final Bill, it is unclear what effect they will have on employee participation in trade union activity. These amendments may help to tip the balance in favour of the unions in close ballots but are perhaps not otherwise enough to shift the industrial relations landscape altogether. Moving the relationship with unions forward into the digital age would have been inevitable at some point, but the impact of the current proposals will depend on the detail of any secondary legislation. In any case, we would expect to see an increase in employee engagement with unions as a result, particularly among younger employees. 

The Employment Rights Bill is expected to get Royal Assent before the summer recess in 2025. However, many of these proposed amendments will need to be implemented by secondary legislation. The Government has committed to looking at (and in some cases consulting further in relation to) these points once the Bill receives Royal Assent but it seems unlikely that the changes will be implemented before the end of 2025.

For more analysis on the trends we are seeing in collective employee activism, please see Seven trends shaping UK employment, incentives and pensions in 2025 and our Effective Collective blog series. 

If you would like to discuss in further detail any of the points raised in this blog post, please get in touch with your usual Freshfields contact.