Employment Rights Bill – Statutory Recognition Reforms

The Employment Rights Bill (ERB) marks a seismic shift in role of Trade Unions, strengthening collective voices in the workplace.

It pledges to “simplify” the process for Trade Unions to apply to the Central Arbitration Committee (CAC) for statutory recognition, by lowering the thresholds required. Combined with new notification and access requirements, these reforms will make it far easier for unions to establish the support required to trigger a request for statutory recognition.

Whilst these changes are not anticipated until October 2026, employers should act early to and consider the impact of the changes on employee and industrial relations in their own workplace.

Current Position 

Under current law, independent trade unions with sufficient support in a proposed bargaining unit can compel an employer to recognise the union for collective bargaining for “core topics” (i.e. pay, hours and holiday) where an employer has refused a voluntary agreement with the union through an application to the CAC via the statutory recognition procedure.

In applying for recognition, a union must demonstrate that:

• At least 10% of workers within the union’s proposed bargaining unit are members of that union; and
• A majority of workers within that proposed bargaining unit are likely to support the recognition application.

If these conditions are met, the CAC will admit the application for recognition. Thereafter, if the proposed bargaining unit is considered appropriate, a ballot of employees within the bargaining unit will be commissioned. For the CAC to issue a declaration that the union has gained recognition, the ballot must confirm the union is supported by:

• A majority of the workers voting; and
• At least 40% of the workers in the bargaining unit.

Where more than 50% of the bargaining unit are union members, statutory recognition can be granted without the need for a ballot.

Once statutory recognition is granted, the union is entitled to conduct collective bargaining on behalf of those within the bargaining unit.

Proposed Changes to the Statutory Recognition Process

The ERB will lower the current thresholds, ultimately making it easier for unions to obtain statutory recognition by:

• Reducing the 10% membership requirement to anywhere between 2% and 10% (the precise number will be set out in secondary legislation).
• Removing the requirement for a union to demonstrate there is likely to be majority support for recognition; and
• Removing the 40% support threshold required for recognition ballots.

Other Significant Changes 

Notification of a Right to Join a Union 

Employers will be obligated to give workers a written statement advising of their right to join a trade union. This should be given at the same time as employee’s employment particulars under section 1 of the Employment Rights Act. The government is currently consulting on how to implement this change – whether to have a prepared statement that employers must give or whether to prescribe what goes into a statement.

The government has concluded that requiring employers to inform workers of their right to join a trade union will impose only negligible costs. According to its impact assessment, the measure simply involves adding a short, standardised line to existing employment documents such as contracts or offer letters. With most employers already issuing written terms of employment, the government estimates the cost of compliance at just one to two pence per worker. Even when scaled across the entire workforce, the total annual cost is projected to remain under £1 million.

Officials argue that the benefits of the policy far outweigh its minimal expense. By ensuring that all employees are explicitly told of their right to union membership, the government hopes to strengthen workplace representation and improve industrial relations. The measure is designed to be straightforward, with no reporting or monitoring obligations, and is expected to have little impact on small businesses. In short, the government views the reform as a light-touch intervention that enhances workers’ awareness of their rights while leaving employers with only a token administrative burden.

Access to Workplaces

New provisions will enable trade unions and employers to enter into ‘access agreements’ allowing union officials to access an employer’s workforce to meet, represent or organise workers (whether they are members of the trade union or not) and to facilitate collective bargaining. Any failure to enter into an access agreement may result in an order for access from the CAC.

Unions do not have to be recognised to seek an access agreement. Unions may seek to obtain an access agreement as a first step to building union support before approaching an employer seeking recognition. 

We are currently part of ELA Working Party putting together a response to the ongoing government consultation on the right of unions to access workplaces. This is an important opportunity to shape policy. If you have views on the proposals you are happy to share we would be very pleased to hear from you.

Impact and Employer Considerations

Risk Areas

·       Combined impact of changes to trade union rights: taken together, there can be little doubt that these changes will significantly impact the landscape of employer and trade union relations. It is vital that employers start to adopt proactive industrial relation strategy now to ensure a smooth transition. 

·       Lowering of membership requirement: whilst the membership percentage requirement is currently unknown, it is probable that this will be below 10%. Coupled with other reforms this will mean that only a small proportion of the workforce is required to push through a request for statutory recognition.

·       Removal of the 40% threshold: in cases where turnout is low, this change would enable a small, committed minority of employees could secure recognition. There will be more onus on an employer to ensure employees actively vote in the ballot for union recognition (whilst ensuring they don’t actively influence voting one way or another), rather than relying on apathy or low voter turnout. 

Practical Guidance

·       Improving relationships with employees: focusing on opportunities to build and maintain employee relations, for example with regular staff forums or opportunities for employees to raise concerns, will create a more collaborative and communicative environment and ultimately persuade employees support structures exist that negate the need for union representation within their workplace. It’s also important to remember that statutory recognition only covers the core topics – pay, hours and holidays – and there will be other areas where its important to foster positive relationships with employees.

·       Engagement with unions and consideration of voluntary recognition: as new access rights will grant unions increased opportunities to meet with and organise employees, consideration may want to be given to voluntarily recognising a union. This will have a double impact; firstly, it will reduce the risk of a potentially disruptive union campaign and secondly, it will enable employers to decide which unions they want to work with. It is likely better to work with a preferred union to agree access arrangements and / or voluntary recognition on mutually beneficial terms, than to have a union imposed following formal CAC processes. 

·       Training and upskilling: efforts should be made now to train, prepare and upskill managers and HR teams to ensure that they are not only better placed to deal with access requests and any subsequent recognition processes, but also to improve communication and collaboration with employees. For example, by facilitating and chairing regular sessions with employees. This will assist in managing challenging situations and mitigating potential risks and exposure to unions.

·       A statutory request is not guaranteed recognition: there are still areas that can be challenged, for example, the appropriateness of a bargaining unit and relevant support.  Whilst challenges are difficult, at Bevan Brittan we have assisted clients to successfully resist statutory applications for recognition on a number of occasions and grounds. Whilst in theory changes to the thresholds will make it much easier for unions to succeed, in practice they are still likely to want to focus their efforts and resources in workplaces where they are likely to get a positive outcome; not least to avoid wasting these resources, but also because if a union loses a ballot it is prevented from making a subsequent application for a substantially similar bargaining unit for 3 years.

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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.