Lurking behind some of the more attention-grabbing changes outlined the Employment Rights Bill are the proposals for a new industrial relations framework, designed to significantly change the dynamic within the workplace and give employees a stronger collective voice.
Specifically, the Bill sets out a swathe of measures which are designed to:
- make it easier for unions to seek recognition, and in turn to instigate industrial action, whilst at the same time enhancing protection for staff involved in such action;
- improve information to employees about their right to join a trade union and access to the workplace for union representatives, as well as enhancing the range of activities that can be undertaken by the representatives; and
- create new roles of Equality Representatives, and introduce sector-wide Fair Pay Agreements.
Trade union recognition
Union recognition can potentially be agreed voluntarily between employers and unions, but when that does not occur the union can trigger a statutory recognition process. The Bill opens the way to replace the requirement that 10 per cent of workers are members of a union with a lower threshold (potentially as low as 2%), and:
- removes the requirement for 40% of eligible employees to vote in support, and in turn a simple majority of those voting will be sufficient – a radical shift designed to increase union representation across the business landscape;
- provides that where half the employees in a bargaining unit are union members, recognition will be awarded automatically;
- creates a framework for anti-union recognition practices (such as attempts to dilute the workforce with staff unlikely to vote for union recognition) to be outlawed.
Industrial action
This Bill removes the requirement that industrial action (such as strikes) is supported by 50% of employees entitled to vote (which, under the new rules, can be undertaken electronically), which means that action can be approved by a simple majority of those who do vote – in practical terms, this change may significantly lower the bar for industrial action.
In addition, the Bill:
- reduces the length of notice that unions need to give employers of planned industrial action from 14 to seven days (which may leave the employer with little time to prepare and respond), and extends the period over which industrial action may be taken – thus increasing the potential impact of the industrial action, and in turn the negotiating position of the union;
- dispenses with the 12-week limit on the unfair dismissal protection offered to workers who go on strike, and creates a new right for workers not to be subjected to detriment “for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so”; and
- removes the minimum service legislation passed by the previous government which introduced the option for employers in particular public services (such as health services and public transport) to identify workers who would be required to work to maintain service levels.
Duty to inform and right to access
Supporting the new approach to recognition, there will be a new requirement on an employer to provide a written statement notifying their employees of their right to join a trade union, and to remind them of this right on a periodic basis.
The Bill also enhances the ability of unions to enter workplaces to meet, represent, organise and recruit workers and to facilitate collective bargaining. Although these rights will be subject to a transparent framework and clear (but, as yet, undetermined) rules, they would represent a significant shift in approach.
Equality Representatives and Fair Pay Agreements
The Bill also establishes:
- a new role of union Equality Representatives with such persons receiving paid time to carry out a wide range of equality-related functions. The Government anticipates that Equality Representatives will play an important role in tackling workplace inequality, supporting trade union members, and preventing issues from arising in the first place; and
- a framework for a Fair Pay Agreement in the adult social care sector. This will enable workers, trade unions and employers to negotiate fair pay, terms and conditions, and training standards across the sector. The Government has previously said that such agreements could also be rolled out to other sectors, bringing the UK into line with various EU countries where sectoral collective bargaining is commonplace – although this is a major shift from the UK’s perspective.
Next steps and timing
Although the proposals are subject to consultation (Making Work Pay: Consultation on creating a Modern Framework for Industrial Relations) which closes on 2 December 2024, the direction of travel is clear in advance of them coming into force in 2026.
This leaves little time for employers (both with and without union recognition) to devise a strategy and take steps to prepare for the new regime.
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