Beyond the Employment Rights Act – February trade union measures take effect

On 18 February 2026, two months after the Employment Rights Act 2025 (the ERA) received Royal Assent, certain measures relating to trade unions and industrial action will take effect. In this blog post, we dive into the key changes. For a broader overview of the upcoming reforms, see our previous blog here. 

Key changes taking place on 18 February 2026

• Industrial action ballot support threshold: Currently, when a recognition ballot relating to certain key public services (such as health and education) is ordered by the Central Arbitration Committee (the CAC), that recognition must be supported by at least 40% of workers entitled to vote with a majority voting in favour. Section 69 of the ERA removes the 40% support threshold. This change, effective for ballots opening on or after 18 February 2026, means that only a simple majority of votes in support will be sufficient for unions to secure mandates for industrial action. The government published a revised version of the Code of Practice on industrial action ballots to reflect this. The Code sets out practical advice for unions and employers to promote good practice when conducting industrial action ballots.
• Notice of industrial action and ballot papers: Sections 70, 71 and 74 reduce the amount of information unions must include in notices of industrial action and voting papers. For example, from 18 February 2026, it will no longer be necessary to specify the number of affected workers in each category expected to take part in the industrial action in the notice to employers. These changes streamline procedural requirements for unions, reducing opportunities for employers to challenge the validity of industrial action on technical grounds.
• Mandate period for industrial action: Pursuant to Section 72, the mandate period for industrial action will increase from six to 12 months. This means that a ballot approving industrial action remains effective for longer, reducing the frequency with which unions need to re-ballot, putting unions under significantly less time pressure and making employer delay tactics less effective. The 12-month mandate will apply to ballots opened on or after 18 February 2026.
• Notice period given to employer of industrial action: Section 74 reduces the amount of notice to be given by unions to employers of industrial action from 14 days to 10 days. Consequently, employers will have less time to mitigate the impacts of strike action or to negotiate with unions in an attempt to avoid industrial action altogether. This accelerated timeline could be further squeezed if unions strategically issue notices ahead of weekends or public holidays.
• Picketing: Section 75 removes the requirement for unions to appoint a picketing supervisor to be responsible for overseeing union-approved picket lines during a strike. The government’s guidance on transitional provisions illustrates how that change will take effect in practice, alongside a revised Code of Practice on picketing, which sets out practical guidance and confirms that there should instead be a trade union official in charge of the picket line from 18 February 2026.
• Protection against dismissal for taking industrial action: Section 77 removes the 12-week cap on automatic protection from unfair dismissal for employees taking part in industrial action. From 18 February 2026, this enhanced protection will apply irrespective of the length of the industrial action, but only to industrial action begun on or after that date. As a result, employers must exercise caution when dismissing employees participating in industrial action to avoid claims for automatic unfair dismissal. 

Additional changes relating to trade union political funds, facility time, and check-off in the public sector also come into force on 18 February 2026. 

Implications for employers

These changes collectively aim to simplify the process for unions to organise industrial action and strengthen protections for employees participating in it. Employers should be prepared for a significant shift in the industrial relations landscape. 

In particular, unions will find it significantly easier to secure mandates for industrial action and will have longer windows to call for action, potentially leading to more frequent and sustained disputes. At the same time, the time during which employers are able to implement contingency plans, engage in negotiations to avert strikes, or prepare for operational impacts, will be significantly curtailed. Fewer technical avenues for employers to challenge the legitimacy of industrial action will make it more challenging to prevent or delay strikes through legal means. This will ultimately increase the likelihood of industrial disruption and places a greater onus on employers to proactively manage employee relations. 

Employers will want to review and update their internal policies and processes, including strike contingency plans, communication protocols, and disciplinary procedures, to ensure that they are compatible with the new legislation and updated Codes of Practice. The staggered nature of these reforms, with further significant changes due in April 2026, August 2026, October 2026, and into 2027, means employers should adopt an iterative approach to their preparations, continuously monitoring upcoming guidance and regulations. 

Building and maintaining strong, proactive relationships with unions and employee representatives will be more critical than ever. With fewer legal levers to prevent industrial action, fostering open communication and effective dialogue will help to prevent disputes from escalating and facilitate swift resolution when they do arise.

For further information on the ERA and its implications for employers, please see here. 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.