Key takeaways

• The consultation closes on 2 December 2024 and the government expects to publish a response in due course.
• The consultation is described as the "first steps" towards modernising trade union legislation but by no means "the last step". Further consultations will be launched following Royal Assent of the Employment Rights Bill on areas including the lowering of the admissibility requirements for the statutory trade union recognition ballot process, a Code of Practice on accessing a union at work, strengthened protections for union members against intimidation, harassment, threats and blacklisting, and introducing statutory rights for trade union equality representatives.
• The government is also planning to host roundtables at the end of this year with cyber security experts, unions and other interested parties on electronic balloting.
• For more information on the key provisions of the Employment Rights Bill, please click here.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

In more detail

The government's aim is to create a positive and modern industrial relations framework for trade union legislation that is fit for the twenty-first century based on the four principles of collaboration, proportionality, accountability and balancing the interests of workers, businesses and the wider public. The key proposals in the consultation are set out below, although the consultation also seeks views more generally on any other "wider modernising reforms relating to trade union legislation" that respondents would like to put forward.

Unfair practices during the Trade Union recognition process

Extending period of protection against unfair practices: Currently, there are various duties and obligations on employers and trade unions not to use "unfair practices" during a statutory recognition (or de-recognition) process. Unfair practices refer to actions that improperly influence the outcome of a recognition (or de-recognition) ballot. Those protections are currently restricted to the CAC-mandated ballot period. The government is proposing to extend the period of protection against unfair practices to start from the point when the CAC accepts the union's application for statutory recognition. The government considers that this would stop an unscrupulous employer from having a "head start" and ensure that unfair practices can be enforced throughout the statutory recognition process rather than just at the ballot phase.

Preventing employers from mass recruiting into the bargaining unit to thwart a trade union recognition application: Currently, the CAC has the power to recognise a union without balloting members when a majority of the bargaining unit are members of the union. The government is aware of at least one occasion where an employer has mass recruited into the bargaining unit to dilute the level of union membership to prevent the CAC from being able to recognise the union without a ballot. The government wants to prevent this from happening again and is seeking views on how to stop this. One proposal is to require employers to provide the number of workers within the proposed bargaining unit within 10 working days of the recognition application being submitted; any worker who is recruited after that deadline would not be eligible to count towards the number in the bargaining unit for the purposes of the recognition process and would not be entitled to vote in any subsequent recognition ballot. However, the government recognises that such a proposal could diminish the rights of those workers and is seeking views on alternative proposals.

Introduction of 20 working days' window for access negotiations to conclude: The government is proposing to introduce a 20 working days' window to agree access arrangements between the employer and the trade union. If agreement cannot be reached by that deadline, the CAC will directly adjudicate unless both parties request a delay (of up to 10 working days) to negotiate. This would replace the current process of Acas and CAC involvement which the government considers is "overly drawn-out and provides time for unfair practices to occur prior to the ballot period".

Changing the test for an unfair practice claim: Currently, an unfair practice claim will only succeed where, (a) an unfair practice was used, and (b) the CAC is satisfied that the use of the unfair practice changed or was likely to change a worker's vote or decision to vote. Evidence to date suggests that such claims have never succeeded due to the difficulties in proving limb (b) of the test. The government is seeking views on the following three options: (1) removing limb (b) from the test, (2) CAC to take an objective test on whether limb (b) had been met, and (3) allowing CAC to accept anonymous evidence from workers to satisfy limb (b).

Extension of limitation period: The government is also proposing to extend the limitation period for bringing an unfair practice claim during the balloting period from the current "before the first working day after the closure of the recognition ballot" to three months following the closure of the recognition ballot.

Simplifying industrial action ballots and notices

Simplifying ballot information: The government is proposing to simplify the amount of information that unions are required to provide to employers in the ballot notice, by removing information about the total number of employees on each of the categories of workers being balloted, the number of workers concerned at each workplace, and an explanation of how these figures were arrived at (and similar information in relation to workers who have their subscriptions deducted from their wages).

Specificity of category of workers to be balloted: The government is also seeking views on whether greater specificity on the categories of workers to be balloted would be helpful in the ballot notice as the government recognises that this can sometimes be an area of disagreement between employers and trade unions.

Amending timeframe in which ballot results must be provided: Currently, a union must provide the results of an industrial action ballot to those entitled to vote and the employer "as soon as reasonably practicable" after holding the ballot. The government is seeking views on whether "as soon as reasonably practicable" should be amended, and if so, what a reasonable time requirement would be. The government is also seeking views on whether a specific mechanism should be specified for how those results are communicated.

Simplifying information in industrial action notice: The government is proposing to simplify the information that unions are required to provide employers in their industrial action notice to remove the following requirements: (a) the number of affected workers in each category listed, (b) an explanation of how these figures were arrived at, and (c) providing the information at (a) and (b) above where some or all of the workers have their union subscriptions deducted from their wages.

Specificity of category of workers to which the relevant affected workers belong: Currently, unions are required to provide a list of the categories of worker to which the relevant affected workers belong. In practice, unions provide general job categories but the government recognises that greater specificity may better help employers in their industrial action planning, so is seeking views on whether greater specificity would be helpful.

Extending expiry of industrial action mandate: Currently, there is a six month expiration period on industrial action mandates. The government is proposing to extend that expiration period to 12 months as negotiations between the parties can take longer with the result that unions have to re-ballot their members after the six months period.

Notice period for industrial action: Currently, unions need to give employers at least 14 days' notice of industrial action. The Employment Rights Bill, as drafted, reduces this notice period to seven days. The government is however seeking views on what respondents to the consultation consider is an appropriate notice period for industrial action.

Updating the law on repudiation of industrial action

The government considers that the law on repudiating unofficial action by trade unions to avoid a damages claim is outdated and needs review. It is considering several options:

• Changing the current requirement on the union "to do its best" to give notice of repudiation to each member to one of "reasonable endeavours",
• Changing the requirement so that the union only has to show that it has issued a general notice of repudiation on its website and notified the officials and employers involved, rather than every member that could be involved,
• Imposing a fixed time frame on the notice of repudiation, say within 3 working days, rather than the current requirement to "act without delay".

Clarifying the law on 'prior call'

The government considers that the current legislation which bars a union from taking official, protected industrial action where a prior call has taken place is unfair in circumstances where the union members walked out because of a genuine fear for their safety. The government is proposing to amend the legislation so that the current bar would not apply in these "emergency" situations and is seeking views on what circumstances may amount to an emergency situation.

Right of access

The Employment Rights Bill provides the framework for a new right of physical access to the workplace by unions. Enforcement of the new right is via the CAC. The consultation document sets out the government's proposed approach for the CAC to enforce access agreements, which includes penalty fines for non-compliance. The government is seeking views on their proposed approach and how the penalty fine system should work.