Employment Rights Bill Series: The Pendulum Swings on Industrial Relations

Trailed as the “biggest update to workers’ rights in a generation”, the Employment Rights Bill 2024 (ERB) sets out a suite of enhanced Trade Union rights intended to ‘modernise and update Trade Union laws’ and ‘repeal legislation that has led to an overly conflictual approach to industrial relations’.

In the 158-page Bill document, Trade Union rights are found in Part 4. The Government has indicated that these changes are high on its policy agenda, with reforms likely to take effect within months of the ERB becoming law (although that may yet be some time away). Public consultation on the industrial relations aspects of the ERB is already underway.

As a brief reminder of the context. the ERB follows up on pre-election promises made by the Labour party in the Green Paper ‘A New Deal for Working People’, first launched by Angela Rayner (a former Unison representative) at Labour’s conference in 2021 and drawn up in partnership with Labour’s affiliated unions. It is a comprehensive plan to strengthen collective rights and firmly promotes a belief in collective bargaining, demonstrated by the intent to introduce sector-wide collective bargaining for school support staff and workers in adult social care.

Under section 45 of the ERB, employers will be required to provide employees with a written statement confirming their right to join a trade union. This is to be provided when they commence employment and as part of their ‘Section 1 statement’ (a statement required by the Employment Rights Act 1996 setting out the basics of the employment relationship). There will also be a continuing requirement to inform staff of this right on a regular basis. There is currently no explicit requirement in existing legislation for employers to actively inform their workers of their right to join a trade union, either at the start of employment or an ongoing basis.

Specific details, including the frequency and manner of communication, will be set out in secondary legislation following consultation.

Under current legislation, Trade Unions do not have an independent right of access to workplaces and can only exercise their functions through individual members. Under section 46 ERB, unions can request an 'access to the workplace' agreement from employers to provide access to:

• meet members;
• recruit new members;
• support a member with an employment related matter; or to
• facilitate collective bargaining.

The ERB sets out a framework for how a request should be made by a trade union and considered by an employer. The request must include specific terms and be in a prescribed format (both of which will be detailed in future regulations).

Disputes regarding access agreements will be handled by the Central Arbitration Committee, which may order an employer to take specific steps to ensure compliance or order a penalty for repeat offences (at a rate to be determined, again, by future regulations).

For unrecognised unions, this right of access will be an opportunity to recruit and organise within a workplace with the aim of gaining recognition.

Under section 47, which covers Trade Union recognition, the ERB removes the requirement to show at the application stage that at least 50% of workers in a bargaining unit are likely to support Trade Union recognition.

It also grants the Secretary of State a power to reduce the current requirement to show at the application stage that at least 10% of workers in a bargaining unit are members of the union (down to as low as 2%) and simplifies the support required for recognition in the final ballot, so that a simple majority of those voting is sufficient. The aim is to encourage recognition and curb existing legislation that is viewed by Labour as being overly restrictive.

Sections 50 & 51 of the ERB deal with time off for Trade Union duties.

Currently, employees who are also Trade Union representatives are able to take paid time off for the purpose of carrying out various trade union duties/undertaking training. The amount of time, purpose for taking it and any conditions attached to time off for union duties are limited to what is ‘reasonable in all the circumstances’ having regard to any relevant provisions of a Code of Practice issued by ACAS.

The ERB proposes to strengthens the union representatives’ position in respect of this right, by establishing a ‘presumption’ that the employee’s assessment of the time required is reasonable. In employment tribunal cases where trade union officials or representatives claim they were denied reasonable time off for union duties, the burden of proof will be placed on the employer, who must demonstrate that the time off requested was unreasonable.

There will also be new provisions to ensure that, where employees are permitted to take time off, they are also provided with reasonable access to facilities (such as office space and access to the internet) to enable them to carry out their duties or undergo training.

The ERB formalises the role of ‘Trade Union Equality Representative’, which currently is not recognised in law and, of course, also provides this new statutory category of representative with a right to time off and to access facilities.

In relation to time off, the Bill introduces a new section 168B to Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to require that an ‘equality representative’ of the Trade Union must be permitted by their employer to take time off during their working hours for the following purposes:

• Carrying out activities for the purpose of promoting the value of equality in the workplace;
• Arranging learning or training on matters relating to equality in the workplace;
• Providing information, advice or support to qualifying members of the trade union in relation to matters relating to equality in the workplace;
• Consulting with the employer on matters relating to equality in the workplace;
• Obtaining and analysing information on the state of equality in the workplace;
• Preparing for any of the things mentioned in paragraphs (a) to (e).

This right to time off will only apply if the trade union has given the employer notice in writing that the employee is an equality representative of the union, and the training condition is met in relation to the employee.

Section 54 of the Bill deals with ‘Simplifying industrial action ballots’. This section repeals sections 2 and 3 of the Trade Union Act 2016 introduced by the previous Conservative government (and makes consequential amendments to Schedule 4 to that Act).

The requirement in section 2 that at least 50% of the trade union members entitled to vote in a ballot on industrial action must participate in order for the ballot to be valid (with a simple majority voting in favour) is to be removed.

In addition to the 50% participation threshold, Section 3 Trade Union Act 2016 imposed a requirement that, in important public services namely health, education, fire, transport, and border security, at least 40% of all union members entitled to vote in the ballot must vote in favour of a proposal for a ballot to be successful. The ERB repeals this requirement too.

The ERB proposes that the law in relation to balloting for industrial action should require a simple majority of those voting to be successful, with no requirement for any level of turnout. There is also a move to allow electronic means to undertake the ballot, in an effort to encourage voting.

Section 60 of the ERB covers ‘Protection against detriment’, filling the void in s146 of TULRCA 1992 recognised by the Supreme Court in Secretary of State for Business and Trade v Mercer earlier this year. In this case, the Court ruled that section 146 does not protect workers who take part in lawful strike action from detriment short of dismissal and that this is incompatible with the right to freedom of association and assembly under Article 11 of the European Convention on Human Rights. Workers will, under the ERB, have protection from detriment for participating in lawful strike action, even if they are not dismissed. The Government will consult on what types of detriment should be prohibited.

Section 60 ERB goes on to increase the protection afforded to strikers under TULRCA so that protection under section 238A against dismissal will apply for the whole length of the strike action. Currently, the basic ‘protected period’ only lasts for 12 weeks, beginning with the first day of protected industrial action; section 238A(7A) to (7D).

Section 61 of the ERB addresses the repeal of The Strikes’ (Minimum Service Levels) Act of 2023.

This Act was introduced by the previous Conservative government to enable employers to require a minimum level of service to be provided during a strike. It applied to services that fell within the ‘essential’ public services of health, fire and rescue, education and transport services; border security and the decommissioning of nuclear installations of radioactive waste and spent fuel.

At the time of its introduction, Labour, along with many employers and trade unions opposed the Act as it arguably undermined the ability of employers and trade unions to negotiate and come to resolution on disputes, which is at variance with Labour’s stated objective to ‘ensure our workers have a voice’. It was, therefore, not a surprise for this repeal to be included in the ERB.

It is important to remember that the current version of the ERB is only a draft. It may be amended during its passage through Parliament, following public consultation, or by further regulations.

A public consultation on the industrial relations aspects of the ERB was published by the Government on 21 October 2024 and will run through to 2 December 2024. In this very broad consultation, the Government seeks feedback on various specific measures outlined above, plus:

• simplifying the amount of information unions are required to provide during industrial action;
• introducing an enforcement mechanism relating to Trade Unions’ new ‘right of access’ to workplaces; and
• strengthening provisions to prevent unfair practices during the Trade Union recognition process.

Additional policy proposals out for consultation include:

• Reducing the industrial action notice period from 14 days to 7 days
• Extending the expiry of a strike mandate from 6 months to 12 months.

• Overview: ERB What’s In, What’s Out, What’s Next? (11 October 2024)
• ERB: Flexible Working: Further Flexion (21 October 2024)
• ERB: Day 1 right to claim unfair dismissal (25 October 2024)