Employment Eye – May 2025

The Employment Rights Bill – Industrial Relations Reform

The long awaited Employment Rights Bill (Bill) was published in October 2024. The Bill has undergone several amendments, most recently on 5 March 2025 (please see our previous update for further details).   Whilst the Bill is currently under review by the House of Lords, what is certain is that it is set to bring about significant changes to the landscape of Employment Law as we currently know it. 

Much of the publicity surrounding the Bill has focused on day one rights and unfair dismissal claims, new statutory minimum probationary periods, restricting the use of zero-hours contracts and the enhanced rights in relation to flexible working (to name a few). However, there has been less attention on the proposed reforms relating to trade unions and industrial relations. We have therefore decided to focus on these reforms in this edition of Employment Eye, particularly as they are set to bring a raft of changes in respect of workers’ rights and employers’ obligations. 

What are the key changes that have been proposed? 

A significant number of changes have been proposed within the Bill and subsequent amendment papers; some of the key changes are summarised below:

• Changes to the statutory union recognition process;
• An obligation on employers to notify workers of their right to join a trade union; 
• Trade union rights of access to the workplace; and
• Making it unlawful for employers to impose sanctions or detriments on workers for engaging in industrial action.

We have explored these proposals in more detail below. 

1.  A simplified recognition process

The consultation paper on creating a modern framework for industrial relations, which was updated on 4 March 2025, states that “Many employers recognise the benefits trade unions bring to their business, including by helping to settle disputes swiftly and effectively, building trust amongst workers and boosting morale, ensuring workplaces are safe and reducing the costs of poor health and accidents, and helping with staff retention. However, burdens on trade union activity, and challenges in recognition and access, risk taking unions away from their core role of negotiation and dispute resolution”.

Trade union "recognition" is where an employer agrees that a trade union is entitled to negotiate on behalf of some or all of its workers (known as the bargaining unit) in respect of at least one of the matters listed in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. These matters include conditions of employment, pay and hours. The agreed arrangements are usually set out in an agreement (often called a collective agreement or recognition agreement), which usually includes agreed arrangements for facilities for officials of trade unions, provision of information to the union and the machinery for negotiation or consultation. 

There are two types of recognition: voluntary and statutory. The latter is a legal process by which union recognition is enforced in law. 

At present, the statutory recognition process includes the requirement for a union to demonstrate at least 10% of the workers in the union’s proposed bargaining unit are members of the union and that a majority of workers within the bargaining unit are likely to support recognition of the union. The Bill will permit regulations to lower the 10% threshold to between 2% and 10% and will remove the requirement for a union to demonstrate that there is likely to be majority support.  

In addition, currently, where the Central Arbitration Committee (CAC) has ordered a recognition ballot, the recognition will only be granted if the union is supported by both: a majority of the workers voting; and at least 40% of the workers constituting the bargaining unit. The Bill will replace this requirement so that only a simple majority of those voting will be needed in order to achieve recognition.   

The Bill also proposes to extend the prohibition on unfair practices under the CAC's Code of Practice: Access and unfair practices during recognition and derecognition ballots.   

If the recognition process is simplified in line with what has been proposed, then it is far more likely that unions will be successful in their applications for statutory recognition. 

2. Notification of the right to join a trade union

At present, under the Employment Rights Act 1996, employers are legally required to provide employees and workers with a written statement of employment particulars (section 1 statement) on or before the commencement their employment. This document includes information such as their salary, working hours and place of work. Within the written statement of employment particulars (or within another instalment of the section 1 statement, which must be given within two months of the employee’s start date), an employer is required to provide details of any collective agreements which affects their terms and conditions of employment. But the obligation stops there. 

The Bill requires an employer to notify workers of their right to join a trade union. This information will need to be given at the same time as the written statement of employment particulars, as well as at other times (details of which are presently unknown). 

Whilst the specifics of the information that must be provided are yet to be determined, this new obligation will likely increase the number of individuals who choose to become trade union members. This will of course then have a knock-on effect in terms of the rights and obligations that flow from that. 

3. Unions’ right of access

One of the most significant changes set out in the Bill is the right for trade unions to access the workplace. 

At present, there is no right for unions to access the workplace, and any access is usually for limited purposes. Unions are only able to access an employer’s premises if that employer grants express permission, and this would likely arise where, for example, a collective agreement permits for it or if a union has already been recognised. 

The Bill proposes to grant trade union officials (of any union) the right to request access to workplaces for the purposes of recruiting, organisation and collective bargaining. The employer will be required to respond to the request within a specified timeframe (and reach an agreement for access). If they fail to agree, the CAC is able to assess the requirements of the request in line with the “access principles” and will order access where appropriate. These requirements are also expected to include remote and digital access. Access is said to be permitted even if the union has no current members but is looking to recruit. It is said, however, that this will be subject to a strict statutory process, which is expected to be published in secondary legislation once the Bill is passed. 

4. The imposition of detriments for engagement in industrial action

At present, employers are able to impose detriments (aside from dismissal) on workers who participate in industrial action. It is worth noting, however, that workers must not be subjected to detrimental treatment or dismissal purely because of their trade union membership or related activities. Doing so could result in a successful claim for automatic unfair dismissal. 

However, the Supreme Court recently ruled in the case of Secretary of State for Business and Trade v Mercer that employers can no longer subject workers to detrimental treatment for taking part in industrial action. The basis for the Supreme Court’s decision was that it held that current law is incompatible with workers’ human rights. The Bill therefore proposes to introduce new protections for workers in the event that they are subjected to detrimental treatment for taking part in specific industrial action, although it is expected that particular “prescribed” detriments will be outlined in secondary legislation. 

Even though legislative changes have not come into force following the case of Mercer, employers should remain mindful of the treatment of workers who engage in industrial action, avoiding any less favourable and/or subjecting them to a detriment for doing so. Treatment of this nature could have adverse reputational consequences and could even result in legal action being taken. 

5. Industrial Action 

In terms of reforming the law around industrial action, the Bill has proposed to:

• Repealing the 50% industrial action ballot turnout threshold so no specific level of turnout is required.
• Repeal the Strikes (Minimum Service Levels) Act 2023 and parts of the Trade Union Act 2016.
• Reduce the notice period that unions are required to give in relation to industrial action from 14 to 10 days. 
• Extend the expiry of a mandate for industrial action from 6 to 12 months. 
• Remove the requirement on a union to provide information on the number of employees in each category or workplace or explain how the total number was determined by the union, or disclose to the employer the number of employees in each category that are expected to take part in industrial action.

The government has also stated it is committed to launch working groups on e-balloting in the coming months. 

How can employers prepare?

Whilst the majority of changes are not expected to come into force until 2026 at the earliest, employers must ensure that they familiarise themselves with the Government’s proposals, regardless of whether they are unionised or non-unionised employers. 

It is clear that the Government is seeking to strengthen workers’ rights throughout the Bill, but specifically in relation to the proposed reforms relating to industrial relations. Employers should use the upcoming changes to work collaboratively with their workforce in order to strengthen internal relations and limit any possible adverse impact of the upcoming reforms.

Employment law 2025 – keeping you and your organisation up to date

There have been a number of notable developments since March’s edition of Employment Eye - below is a short recap on some of the key developments.

14 March 2025	Hewston v Ofsted (Office for Standards in Education, Children's Services and Skills). The Court of Appeal upheld the finding of unfair dismissal. It did not see how it could be reasonable to “bump up” the seriousness of the conduct due to the claimant’s failure, during the disciplinary, to show contrition or insight (although it recognised there may be cases where a lack of remorse justifies dismissal, but this case was not one of them).
18 March 2025	A public consultation was launched on 18 March 2025 to seek views on the pay gap reporting measures proposed. The Government has said that the responses will help shape the measures that will ultimately be included in the draft Equality (Race and Disability) Bill. Whilst the Government aims to use similar measures currently used for gender pay gap reporting, there are different considerations, particularly in data collection and analysis. The consultation aims to seek views on the differences. It isn’t too late to get involved, the consultation closes at 11:59pm on 10 June 2025. Online responses are encouraged. Please see the consultation document for full details.
3 April 2025	Phyllis Sullivan v Isle of Wight Council. The Court of Appeal agreed with the decision to dismiss the claim as job applicants do not have whistleblowing protection. The claimant did not have an existing worker relationship and the role applied for was not an NHS role, where whistleblowing protections have been extended for purposes of patient safety and treatment. It also ruled that any difference in treatment would have been objectively justified.
7 April 2025	The Office for Equality and Opportunity issued a call for evidence on equality law and the proposed changes. The consultation will also help shape the forthcoming Equality (Race and Disability) Bill. Closing date is 30 June 2025.
16 April 2025	For Women Scotland Ltd v The Scottish Ministers. The Supreme Court clarified that the terms “woman” and “sex” under the Equality Act 2010 mean “biological woman” and “biological sex”, not gender or sex acquired or certificated through a Gender Recognition Certificate. Following the judgment the Equality and Human Rights Commission (EHRC) published a short interim update on the practical implications of the ruling.
23 April 2025	The Department of Business and Trade published additional factsheets in support of the Employment Rights Bill, as well changes to some of the original 10 (with one being removed). There are now 22 factsheets in total!
28 April 2025	Brake Bros Ltd v Hudek. The Employment Appeal Tribunal concluded that the Employment Tribunal had incorrectly elevated a mechanism for flexibility into an enforceable contractual obligation which gave rise to additional pay. Neither business efficacy nor the unexpressed intention of the parties justified the implication of a term that provided pay for hours worked beyond intended ‘normal working hours’ other than when the overtime provisions kicked-in.

 

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If you would like further information on any of the topics discussed in this article, please contact a member of the Employment, Pensions and Immigration department who will be happy to help.