Trade unions under the Employment Rights Bill 2024

Following a four-decade reduction in trade union membership in the UK, UK Government statistics reported a 1.4% rise in membership in 2023. Scotland, with a distinct economic, political and social landscape reflected in the workplace, had the biggest increase at 2.6%. Interestingly, Scotland also recorded a significant 12% rise in young worker membership (16- to 34-year-olds).

The Employment Rights Bill 2024, having passed its second reading in the House of Commons, is vast and contains 28 employment reforms over 158 pages. Much of the detail will be delivered through secondary legislation informed by consultations.

Provisions relating to trade unions and industrial action are likely to be among the first to become law. The Bill is said, by UK Government, to scrap recent ‘ideological, ineffective anti-union legislation’ and to introduce new rights, in what marks the UK Government’s first steps towards building a ‘modern, positive industrial relations framework’. These will bring about various significant changes that workplaces will need to plan for – and introduce.

Right to statement of trade union rights – further administration
Employers will be required to give workers a written statement outlining their ‘right to join a trade union’.

The statement must be given alongside the statement of employment particulars, or for existing employees, at ‘other prescribed times’ (to be defined in secondary legislation). Form, content and additional procedural requirements will also be provided in future secondary legislation.

Failure to provide a statement of trade union rights will incur the same penalty as failure to provide a statement of particulars, namely two to four weeks’ pay awarded by the employment tribunal (but only where the employee has successfully raised a separate related claim).

Access agreements – including CAC process
Trade unions do not currently have an independent freestanding right to access workplaces and rely on individual members in that workplace to act. A low membership in a workplace curtails union activity.

The Bill introduces a framework whereby trade unions can request an ‘access agreement’ with an employer. If granted, the union is permitted access to the workplace to meet, represent, recruit or organise workers and to facilitate collective bargaining. An access agreement will not permit access to organise industrial action.

Time limits (yet to be prescribed) will be imposed on responding to and negotiating an access request respectively.

If an access agreement has not been reached voluntarily between the union and employer within the set timeframes, either party may apply to the Central Arbitration Committee (CAC) for a decision.

Trade union recognition – simpler and easier
A trade union must be recognised by an employer in order to negotiate on pay, terms and conditions (collective bargaining, leading to collective agreements). An employer can voluntarily recognise a union; failing which a union can try to gain recognition through a statutory process with the CAC. The existing process and requirements make recognition fairly difficult to obtain.

The Bill aims to simplify the statutory recognition process by making the following changes:

• Currently, upon application, a union must demonstrate that it 1) has at least 10% membership within the proposed bargaining unit (i.e. the group of employees the union seeks to represent) and 2) is likely to win a recognition ballot (a later stage in the process).

The Bill grants Ministers the power to lower the membership threshold to between 2% and 10%. The second requirement (demonstrating a predicted ballot win) is removed altogether.

• To win a recognition ballot under the current process, the union must get the support of 50% of voters, which in turn must represent 40% of the total workforce.

The bill removes the second requirement, meaning a simple majority of votes will be sufficient, regardless of voter turnout.

This represents a proposal to significantly lower the threshold for recognition to be achieved through the statutory CAC process.

Reversal of burden of proof on time off for union duties
Currently, employees who are recognised trade union representatives are entitled to reasonable time off for union duties. Failure to grant time off can be contested at the employment tribunal. However, the burden of proof would lie with the employee to demonstrate the unreasonableness of the decision. This is proposed to be reversed, meaning if an employer denies trade union officials/representatives requested time off, it is the employer’s responsibility to show that the time requested was unreasonable. This will have significant practical implications for handling requests. Combined with easier recognition (and so further recognised representatives) there will be more for employers to handle and facilitate, or face disputes and employment relations upset.

Simplified industrial action ballots
The Trade Union Act 2016 introduced various restrictions on how votes are to be carried out. For a vote to be valid, 50% of eligible voters must vote and a simple majority of those votes must be in favour, save that in certain public services, 40% of the eligible voters must vote in favour of strike action. For example, if there are 100 members in a trade union, 50 must vote and 26 must be in favour for a strike to take place; or in a public sector setting, 40 would need to vote in favour. The new Bill removes the turn out requirement meaning industrial action ballots will operate on a simple majority of those who take part in the vote. Electronic and workplace voting in key ballots will also be allowed.

Protections against detriment for strike action have been bolstered
The Supreme Court case of Mercer v AFG highlighted a gap in the existing law. It held that s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not provide protection for action short of dismissal for taking part in strike action. It also found that this amounted to a breach of Article 11 of the European Convention on Human Rights. The Bill attempts to resolve this issue by protecting workers from detriment for participating in lawful strike action. The UK Government will consult on what types of detriment will be prohibited.

Repeal of the Strikes (Minimum Service Levels) Act 2023
This legislation controversially introduced the requirement for minimum service levels to be maintained during strike action in six different sectors: health; education; fire and rescue; transport; border security; and nuclear decommissioning / radioactive waste management services. This Act being repealed will mean that strike action will have less restrictions in these sectors.

Further steps
The Employment Rights Bill 2024 brings with it a huge number of changes and – at present – an indeterminate timescale. Whilst we await further detail, employers have the opportunity to begin to plan ahead and contemplate what steps will be needed to facilitate and demonstrate compliance with the new requirements of the legislation, as there will be a significant administrative and operational change required within all workplaces. There may also be the need for careful understanding of what people within the workplace will need to do to guard against difficulties arising if membership, recognition and activities are pushed for but not welcomed, or where the needs of business rub against a growing trade union presence in the workplace (and vice versa). Keeping track of developments and considering how these may be best handled in the workplace in future will be important to ensure business can continue harmoniously alongside increased trade union and associated rights.

Please get in touch if we can help you on any of the topics outlined in this update and, more specifically, some practical steps to ensure you are prepared for the changes.