The Labour Government's Employment Rights Bill (ERB) will introduce the most far-reaching changes to UK employment law in a generation. A key part of those reforms aims to modernize trade union laws and strengthen collective voices at work. In its “Plan to Make Work Pay” the Labour Party declared its intention to bring in a new era of partnership between employers, unions and Government and to strengthen collective bargaining, which it considers to be key to tackling problems of insecurity, inequality, discrimination, enforcement and low pay.

To this end, the ERB will lower the thresholds for unions to compel employers to enter into collective bargaining, through the statutory recognition procedure. This is combined with an obligation for employers to notify employees of their right to join a union and a new right for unions to gain access to the workplace, even where they are not recognised. These reforms make it easier for unions to build up the level of support needed in a workforce to meet the thresholds to trigger a statutory recognition request.

Overall, these changes aim to give unions a greater opportunity to expand recognition into workforces where employers might previously have been resistant to union recognition and to make it easier for unions to support and represent employees. The changes are not expected to come into force before 2026, but employers should take steps now to consider the implications and review their employee and industrial relations strategy. The changes and their impact are considered in more detail below.

The ERB will also make changes to the rules on industrial action by unions, to make it easier to take industrial action and give greater protection to employees taking industrial action. It will also provide increased rights of access to facilities and for time off, for union workplace representatives. These reforms are not considered in this article, but more detail on these proposals and the government’s wider proposals on employment law can be found on our Policy Hub.

Background: the current position

Although union membership in the UK increased slightly in 2023, the long-term trend has been a decline in union coverage, from a peak in 1979. According to the Trades Union Congress (TUC), in 1979, 80% of the UK workforce was covered by collective bargaining; by 2018 this was just 26%. In 2023 only 12.3% of private sector employees were members of trade unions (Department for Business and Trade).

Most recognition of unions in the UK is voluntarily agreed between the union and the employer. Voluntary recognition agreements are generally not legally enforceable and can cover a wide range of workplace issues.

However, in 2000, the last Labour Government introduced the statutory recognition procedure. It enables independent trade unions with sufficient support in a proposed bargaining unit (which can vary from the entirety of the non-management workforce to certain sub-sections of the workforce such as engineers) to compel an employer to recognise the union for collective bargaining in relation to the “core topics” of pay, hours and holiday where the employer refuses to agree to a voluntary arrangement. The procedure is complex, but in summary the union can start the process if it can show that:

• 10% of workers within the bargaining unit are union members; and
• the majority of the bargaining unit are likely to be in favour of recognition (e.g., through signatures on a petition supporting recognition).

If these conditions are met the union can apply to the Central Arbitration Committee (CAC) for recognition. If the application is found to meet the relevant criteria and the bargaining unit is appropriate, there may ultimately be a ballot of employees within the bargaining unit. In order for recognition to be awarded, not only must the majority of the workforce who vote be in favour, but they must constitute at least 40% of the bargaining unit. Where more than 50% of the bargaining unit are union members, recognition can be awarded without a ballot.

In the year ending March 31, 2024, the CAC received only 81 applications for statutory recognition. It made 19 declarations of statutory recognition, and 18 applications resulted in an agreement for recognition prior to a final determination. Of course, there will have been more cases where the existence of the statutory procedure led to employers agreeing to union recognition voluntarily (which is the first step that an employer must consider), in the light of the support demonstrated by the union. However, the statutory recognition procedure has not halted the long-term decline in union representation.

Proposed changes

The ERB will introduce a number of changes, designed to make it easier for unions to build up support, provide services to employees and obtain statutory recognition. The key changes are:

1. Notification of right to join a union

An employer will be required to notify workers of their right to join a union. The information must be given to new joiners at the same time as the written statement of particulars of employment (i.e., the “section 1 statement”) and will also need to be provided at other times, yet to be specified. The precise information to be given is also not yet known but could include the statutory protections which exist in relation to trade union membership and trade union activities.

2. Right of access for unions

A more significant change is a new right for trade unions to gain access to the workplace. Currently, unions that are not recognised by employers have very limited rights of access (only to accompany employees at disciplinary and grievance hearings or during a statutory recognition ballot) and this hinders their ability to build up membership and support for recognition and to gain evidence to support an application for statutory recognition.

The ERB will enable any union to request access to a workplace "to meet, represent or organise workers (whether or not they are members of a trade union)" or to "facilitate collective bargaining." They will not be able to request access to organise industrial action. The employer will be required to respond within a specified time and there will then be a period for the employer and union to seek to agree access arrangements. If they fail to do so the parties may apply to the CAC, which can order access.

The CAC's decision on a request for access must be consistent with three "access principles":

1. access should not "unreasonably interfere with the employer's business";
2. an employer should take reasonable steps to facilitate access; and
3. access should only be refused entirely where it is reasonable to do so.

These principles point towards granting some form of access, unless there is good reason not to.

There is no requirement in the ERB for a union to have any particular level of membership before seeking access and there is no limit on the overall number of unions that can seek access. However, the Secretary of State can prescribe circumstances in which it is reasonable to deny access. These factors include the number of union members and the total number of workers in the workplace. The Government has indicated that there will be further regulations and a Code of Practice dealing with access, and so it is possible that minimum membership levels will be introduced. Where an access agreement is concluded, the CAC will also have powers to enforce access agreements.

Access under the ERB is limited to physical entry into the workplace, which could limit its usefulness in organisations where there is widespread remote or hybrid working.

3. Statutory recognition

The Government promised to simplify the process for statutory recognition. In fact, the process will remain complex, but the ERB will make a number of changes that will make it easier for unions to secure statutory recognition.

• Unions will no longer need to establish that the majority of a bargaining unit is likely to support recognition, in order to apply for statutory recognition.
• There is also a power in the ERB to reduce the membership requirement needed to make an application from the current level of 10% to as little as 2%. There will be further consultation over the appropriate level. The TUC has stated that it intends to make a strong case for a reduction to 2%.
• If an application proceeds to a ballot, recognition can be secured by a simple majority of those voting. It will not be necessary to show that 40% of the bargaining unit supports recognition. Therefore, it will be possible for unions to secure recognition even when the majority of the bargaining unit is, for example, apathetic or deterred from voting. However, according to the Government’s impact assessment, of the 298 recognition ballots that have been run during the period the statutory procedures have been operated, only 26 failed because of a failure to meet the 40% threshold.

4. Consultation on further changes

The Government has also launched a consultation on further changes to the statutory recognition process, aimed at reducing the ability of employers to use unfair practices to prevent recognition once an application for statutory recognition has been made. Two changes are proposed:

• Currently, there is statutory restriction and Code of Practice preventing the employer and union from using unfair practices (effectively imposing undue pressure on the workers to support or oppose recognition). However, this only applies during the period in which the ballot is taking place, which will often be some months after the initial application for statutory recognition is made. The Government is proposing that the scope of the Code of Practice on unfair practices should be extended to apply for the entire duration of the recognition process.
• Where more than 50% of a bargaining unit are union members, the CAC has the power to award recognition without a ballot. The test is currently applied at the end of the statutory recognition procedure once the application has been found admissible and any dispute over the bargaining unit has been resolved. The Government states that it is aware of one case where there was mass recruitment into a bargaining unit with the aim to thwart a trade union recognition application. It is therefore proposing that an employer must state the number of workers in the proposed bargaining unit within 10 days of application for statutory recognition being made. Any new hires into the bargaining unit after that date would not count towards the number in the bargaining unit for the purposes of the recognition process.

The consultation on these proposals closed on December 2, 2024.

Impact and steps for employers

The overall impact of the reforms remains to be seen, and much is still to be worked out in the regulations. The TUC has welcomed the changes as bringing in “important new rights to better enable unions to recruit and organise workers and ultimately improve pay and conditions in the workplace."

The new access arrangements are certainly a significant change that will give unions a greater opportunity to build up support in a workforce. Employers that have been resisting recognition or that operate in sectors where the unions have been targeting expansion (e.g., the Tech sector) are likely to face requests for access.

The changes to the thresholds for statutory recognition will also make it easier to start and ultimately succeed in an application for statutory recognition. In practice, even where a union meets the minimum membership threshold, it is still likely to want more evidence that it has sufficient support to win a ballot before making an application. This is partly because it will not want to waste resources on an unsuccessful campaign. Also, if it makes an application and ultimately loses the ballot, a union is prevented from making a further application in respect of substantially the same bargaining unit for three years. Unions will also want to focus resources where they are most likely to get a successful result.

The combined effect of these changes is likely to lead to an increased pressure for recognition. One effect might be to increase voluntary recognition. Where unions can use their new access right to build membership and demonstrate support, an employer may prefer to recognise the union voluntarily rather than go through a potentially disruptive campaign. This approach might make for a more constructive relationship with the union. Unions will generally prefer voluntary recognition because it avoids the expense and delay of the statutory process and can lead to negotiation over wider issues than just the “core topics.”

Employers that are faced with more than one union seeking recognition may decide to voluntarily recognise the one it considers to be more co-operative or with which it has an existing relationship. Where an employer recognises a union in respect of any part of bargaining unit, that will prevent any other union from using the statutory recognition procedure.

Even recognition of a non-independent union for collective bargaining over peripheral topics which do not include pay, hours and holiday has been found to be sufficient to prevent an application for statutory recognition; this was challenged in the courts but found to be lawful. However, if the union recognised is not independent, there is scope for the employees to “derecognize” the non-independent union. To do so the employees must show that (i) that at least 10% of the members in the bargaining unit favour an end to the bargaining arrangements; and (ii) the majority of workers in the bargaining unit are likely to favour an end to the arrangements. This broadly mirrors the current threshold for an application for recognition. However, the ERB is not proposing to lower this threshold to remove the requirement to demonstrate likely majority support for de-recognition. This would mean it would be more difficult to derecognise a non-independent union than to start the recognition process where there was no union in place. However, this might be an oversight which will be addressed as the ERB passes through Parliament.

If employers prefer not to recognise a union and are faced with a union seeking to build up support for recognition, they will need to focus on their employee relations, communication and overall workforce satisfaction with the aim to persuade employees that they do not need union representation.

Although the changes are not expected before 2026, employers should act early to consider the impact of the changes and review their employee and industrial relations strategy.