Insights into the new Employment Rights Bill: #6 Industrial action

20 December 2024 5 min read

By Rachel Chapman

At a glance

Labour plans to modernise trade union laws, removing unnecessary restrictions and promoting good faith negotiations to foster cooperation between unions, employers, and the government.
The Employment Rights Bill (ERB) will reverse many changes from the past decade, particularly those under the Trade Union Act 2016, simplifying industrial action ballots and notice requirements.
The ERB will repeal the requirement for an independent review of e-balloting but commits to introducing secure electronic balloting for union ballots.
The ERB will enhance protections against detriment and dismissal for workers taking protected industrial action, extending protection beyond the current 12-week cap.
The ERB will remove the requirement for union supervision of peaceful picketing and repeal the Strikes (Minimum Service Levels) Act 2023.

Labour’s Plan To Make Work Pay, published before the election in May, stated:

“Labour will update trade union legislation, so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations are based around good faith negotiation and bargaining. This will end the Conservatives’ scorched-earth approach to industrial relations, ushering in a new partnership of cooperation between trade unions, employers and government and putting us in line with high-growth economies that benefit from more cooperation and less disruption“.

The intention is clear; a complete reshape of the industrial relations landscape. To achieve this the ERB will reverse many of the changes to the law on industrial action implemented over the past ten years, in particular under the Trade Union Act 2016.

Industrial action ballots and notice requirements

The ERB will remove the turnout requirement that for industrial action to be protected, it must have the support of a ballot in which at least 50% of those eligible to vote did so, and 50% of those voting voted in favour of action. Instead, all that will be required is a simple majority of those voting, and the information to be provided to members following the ballot is reduced accordingly. This returns to the position prior to the Trade Union Act 2016.

There is currently an additional requirement where the majority of those who were entitled to vote in the ballot are normally engaged in the provision of “important public services” that at least 40% of those entitled to vote must have voted in favour of the action. The ERB will remove this requirement.

The ERB will also simplify the information which must be provided to members on the ballot paper. The ballot paper will no longer have to include a summary of the matters in issue in the trade dispute to which the proposed industrial action relates or provide details of the type or types of action short of a strike or indicate the period within which the proposed industrial action will take place.

Electronic balloting

In 2017 an independent review into the use of electronic balloting (e-balloting) in industrial action ballots recommended that there should be a trial of e-balloting. The statutory requirement for the Secretary of State to commission an independent review of electronic balloting will be repealed by the ERB but the government has stated that it is committed to introducing modern and secure e-balloting for trade union statutory ballots and will be hosting roundtables with stakeholders on delivering modern, secure electronic balloting for union ballots.

Detriment acted industrial and dismissal for taking protection

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects workers from being subjected to detriment related to trade union membership or taking part in trade union activities. In Secretary of State for Business and Trade v Mercer in April 2024, the Supreme Court considered whether a worker who had been suspended in order to sanction or penalise her for participation in a ‘protected’ (i.e. lawful and official) strike was protected from being subject to a detriment for participation in trade union activities under s. 146 TULRCA. The Court concluded that this protection was excluded from s. 146, principally because it did not take place “at an appropriate time”, meaning there was no statutory protection for the claimant. The ERB addresses this by providing that a worker will have the right not to be subjected to detriment where the act or failure to act takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action or penalising the worker for doing so. The prescribed detriments will be set out in secondary legislation following consultation, to take place after Royal Assent of the ERB.

Currently, workers can claim unfair dismissal if they are dismissed for taking protected industrial action and the dismissal takes place within 12 weeks of the worker starting the industrial action. The worker will also be automatically regarded as unfairly dismissed if they are dismissed after the 12-week period but had stopped taking action before the end of that period.

Under the ERB, this 12-week cap will be removed so that protection extends to the full duration of a lawful and official strike. This removes a significant restriction on an individual’s freedom to take industrial action.

An employer will still be able to dismiss an employee during long-running protected industrial action, provided that the dismissal is for a reason or reasons other than participating in industrial action.

Picketing

The ERB will remove the requirement for union supervision of peaceful picketing, including the appointment of a supervisor.

Minimum service levels

The Strikes (Minimum Service Levels) Act 2023 will be repealed.

Consultation on further measures

On 21 November the government issued a consultation paper ‘Making Work Pay: Creating a modern framework for industrial relations‘ on proposals for further amendments to the law on industrial action. The consultation sought views on:

Simplifying the amount of information unions are required to provide in industrial action notices.
Extending the expiry of the strike mandate from six to 12 months.
Reducing the industrial action notice period from 14 to seven days.
Updating the law on repudiation and prior call.

The consultation closed on 2 December 2024.

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