What challenges remain for trade unions under the Employment Rights Act?

Following the passage of the Employment Rights Act before Christmas, Co-Managing Director Andrew Campbell analyses what this new framework means for trade unions.

The government’s self-styled “pro-growth, pro-business and pro-worker” Employment Rights Act finally received Royal Assent, becoming law on 18th December. Despite some uncertainty along the way, the modernisation and democratisation of the ballot process undertaken by this government has the potential to rebalance workplace relations - if it’s combined with a renewed drive by trade unions to organise and gain the leverage needed to reach fair settlements for workers. 

The Employment Rights Act sees big changes to how ballots for industrial action are conducted.

While the cast of ministers driving the process changed over the fourteen months of debate, in most areas the substance of the bill has remained the same. One notable exception is the waiting period for employees being able to claim unfair dismissal being shortened from two years to six months, rather than it being a day one right. Additionally, a few aspects of the bill, such as reforms to zero-hour contracts, are still subject to future consultation. 

In our previous post we highlighted the issue of ballot turnout thresholds as one aspect that could reshape industrial relations, but hadn’t been resolved in Parliament. When the bill returned to the House of Commons, the government used their considerable majority to move forward with abolishing the required participation levels. This change - along with industrial action mandates being extended from six to twelve months - will come into effect over the coming months. 

The other change we observed was the introduction of online voting. A government consultation on a code of practice for online and workplace voting runs until 28th January. 

Taken together these changes present challenges and opportunities to trade unions. 

If you look at figures and case studies from StrikeMap - presented here in their very insightful report which we supported - and the ONS, 2022 and 2023 had the most time lost to industrial action of any individual years since 1990, and 2024 was significantly above average - this despite the statutory turnout threshold doubtless being a limiting factor to successfully organising strikes. Unsurprisingly, workers are more willing to take industrial action in the context of higher than average inflation.  We can see this is often combined with long running disputes, particularly in the public sector, over real terms pay cuts.

In recent years, we've seen national ballots in the education and healthcare sectors fall because they haven’t reached the 50% threshold, despite overwhelming support of voting members. While that will no longer be an issue, the challenge remains for unions to organise effectively in workplaces so that the threat of industrial action is still given weight by broad support among workers. 

The opportunity for trade unions is now to use this new framework to convert their members’ long-standing grievances into tangible leverage. The removal of the threshold doesn’t lessen the need for unions to engage with and organise members whenever possible. 

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