Fair Pay and Trade Union Rights
Introduction
In ‘Making Work Pay’, Labour committed to ‘updating trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity….’. Labour said that it would repeal ‘all’ of the anti-trade union legislation introduced in the last 14 years, including the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023).
Labour also said that it would simplify the statutory recognition process, create a new right of access for trade unions, provide new protection for trade union representatives and facility time, and ‘update’ protection against blacklisting. In its ‘New Deal’, Labour said it would introduce electronic and workplace balloting and that UK law industrial action should comply ‘in every respect’ with the international labour obligations ratified by the UK, including those of the International Labour Organisation and the European Social Charter.
What’s included?
The Employment Rights Bill introduces many measures towards these ends. Most but not all of the restrictions on industrial action introduced by the Trade Union Act 2016 – ballot thresholds and additional information to be provided on the ballot paper (issues in dispute, types of action short of a strike and period within which action is expected to take place) are removed. However, disappointingly, whilst other provisions of the TUA will be repealed 2 months after the Bill become law, the 50% turn out requirement will remain in force until the Secretary of State makes regulations. The government has said that its intention is to align this change with the introduction of electronic balloting. The Strikes (Minimum Service Levels) Act 2023 will be repealed.
There is new protection against being subjected to a detriment ‘of a prescribed description’ (to be defined in regulations) for participating in protected industrial action. The limit on automatic unfair dismissal protection (in most circumstances) to the first 12 weeks of action is removed – dismissal for participating in protected industrial action will be automatically unfair whenever it occurs. In the statutory union recognition procedure, there will be power to introduce regulations to reduce the 10% admissibility criterion to between 2 and 10%.
Where a majority of workers in the bargaining unit vote in favour of recognition, the CAC will be required to award recognition – the requirement for 40% support in the bargaining unit will be abolished.
Other restrictions introduced by the Trade Union Act 2016 are also removed – the requirement of a picket supervisor, the additional powers of the Certification Officer (including investigatory powers, power to impose a levy and financial penalties), the additional duties in relation to unions’ annual returns (concerning industrial action and political expenditure) and the restriction on collecting union subscriptions by check-off in the public sector. The facility time publication requirements and reserve powers are also abolished. Significantly, the requirement to ‘opt-in’ for political contributions is reversed, and the ‘opt-out’ procedure reinstated.
There is a new procedure for seeking agreements for access to the workplace, with disputes to be adjudicated by the CAC. There is a new right of complaint to the Employment Tribunal for failure to provide reasonable ‘accommodation and other facilities’ for trade union representatives, and a new right to time off for union equality representatives. There is a power to introduce regulations prohibiting the use of any list containing details of trade union members, or those who have taken part in the activities of unions, for the purpose of discrimination.
What’s changed since the Bill was first published?
The period for which an industrial action ballot mandate lasts will increase from 6 months to 12 months. The notice period for industrial action will not go back down to 7 days, instead it will become 10 days.
There are changes to the nature of the information which must be included in ballot notices and action notices. Ballot notices will still have to include lists of the categories of employees being balloted and a list of their workplaces, however the notice will not need to break down the lists by numbers of workers. Action notices will still have to include a break down of the number of employees at each workplace (but not in each category).
Trade unions will no longer be required to ballot members every 10 years on maintaining a political fund, instead they will have to send a reminder notice, informing members of their right to opt-out of making political fund contributions, every 10 years.
What’s still not included?
There has been little progress on the introduction of electronic balloting – the Bill simply records that the power to provide for electronic balloting contained in section 54 Employment Relations Act 2004 is retained. In ‘Implementing the Employment Rights Bill – Our roadmap for delivering change’ published in July 2025, the government has said that it would consult on electronic balloting in Autumn 2025.
Some unnecessary restrictions on industrial action balloting requirements remain in place. There remains a requirement to provide some information as to ‘lists’ and ‘figures’ in ballot and action notices (as above) and the ability of a union to ballot where there is to be a change of employer has not been addressed.
Beyond provision for an Adult Social Care Negotiating Body and the reinstatement of the School Staff Negotiating Body, there is no further progress on fair pay agreements. The government is separately removing the discriminatory pay bands in the National Minium Wage and changes to the remit of the Low Pay Commission were announced on 5 August 2025.
Comment
The Employment Rights Bill's fair pay and trade union rights provisions implement many (though not all) of Labour’s pre-election commitments. In ‘Next Steps’ published in October 2024 the government said that it would launch a working group with stakeholders, to include cyber security experts and trade unions, by the end of 2024 but, at the time of writing, no progress appears to have been made. This needs to happen fast - trade unions have been waiting almost eight years since Sir Ken Knight's review.
Further consideration should be given to what other ‘unnecessary restrictions’ on trade union rights should also be removed to make trade union laws fit for a modern economy and compliant with the UK’s international obligations, the changes to the notification requirements are unlikely to be sufficient, and the outright ban on secondary industrial action remains in place.
Labour still needs to deliver on its commitments to reverse the decline in collective bargaining, update trade union laws, and empower workers in the workplace.
