Unions - the Government proposes some radical reforms

As we have reported previously, the UK Employment Rights Bill (the 'Bill') is the most ambitious set of employment law reforms for more than a generation covering (amongst other things) unfair dismissal, fire and rehire and collective redundancies.  

The Government has begun consulting on aspects of the reforms, anticipating that the majority of them will take effect no earlier than 2026, giving employers time to plan.

The proposals on unions connote a radical change from policy adopted under the previous Government. Today, relatively few employers in the private sector recognise unions and many have had limited dealings with them, other than perhaps as representatives of individual workers in disciplinary proceedings. 

Collective bargaining coverage, where worker terms and conditions are set through local or national negotiation, has declined from over 80% of the workforce in 1979 to 26% today.  It is clear from the measures in the Bill that the Government wishes to promote the role of unions in the future. How will private sector employers be affected by the ways in which it proposes to do that? 

The right to join a union

The first change is a requirement for employers to include in the mandatory statement of terms and conditions of employment given to all workers on day one of employment, a statement of their entitlement to join a trade union. The precise form of the statement will be prescribed by regulations in due course. The penalty for failing to do this will be between two and four weeks' pay for any affected employee, with weekly pay being capped. 

Union access to the workplace

Secondly, unions will be granted improved access to workplaces to meet, represent, recruit or organise workers (whether or not they are members of a trade union) or to facilitate collective bargaining - but not to organise a strike. The means of access will be governed by a negotiated access agreement and there will be a defined process for obtaining this. In default of agreement, the Central Arbitration Committee ('CAC') will decide whether or not the union should have the access it wants. This has the potential to be a big change for employers who have not wanted to engage with unions or have no experience of doing so.

Union recognition

Thirdly, it will become easier for a union to gain recognition in a workplace. In a recognition ballot, the current rule is that recognition will be awarded only if it supported by a majority of those voting in the ballot and at least 40 per cent of those entitled to vote. This threshold requirement will be replaced by a simple majority of those voting, making it much easier for unions to win recognition.

What about strikes?

Fourthly, strikes will become significantly easier to organise, by measures such as a reduction in the notice required and crucially, by allowing unions to use electronic balloting. At present, they are legally required to use postal voting, which is both expensive and time consuming. Allowing strike ballots to be conducted online is a very significant change.

What is the Government consulting about?

Between now and 2 December 2024 there is an open consultation on a number of details of these proposed changes, including:

• the principles that the Government believes should underpin a modern industrial relations framework;
• rights of access by trade unions and enforcement by the CAC; and
• simplifying industrial action ballots.

Comment

There seems to be a growing recognition from organisations such as the Organisation for Economic Cooperation and Development, that collective bargaining may bring benefits to matters such as productivity, the quality of employment and the management of industrial change (e.g. the shift to the use of artificial intelligence across multiple sectors).

There is no doubt of the Government's commitment to reintroducing unions into working life on a scale not seen for decades in the UK.  None of the proposed changes is going to happen overnight - but the clear intention behind the new laws is to improve union representation across the economy. The combined impact could be transformative, but will depend more than anything on the appetite for union recognition within the UK workforce.

If union recognition does start to take hold across the economy, that in turn may have an impact on the way in which employment rights are enforced in the future, with a shift to collective bargaining and workforce agreements reducing the need for the enforcement of individual rights.