Industrial action and ballots

Industrial action is only lawful 50% of trade union members entitled to vote have done so (turnout threshold) and the majority of those union members who voted did so in support of industrial action. In addition, in important public services (as defined in the Trade Union Act 2016) where there a vote on strike action, the turnout threshold remains 50% and at least 40% of those entitled to vote must be in favour of strike action (support threshold).

The turnout and support thresholds will be removed and so an industrial action ballot will be valid provided a simple majority votes in favour and this will apply whatever the sector.

Following amendments made to the ERB in March 2025, the support threshold will disappear two months after the ERB has received Royal Assent, however, the removal of the turnout threshold will come into force via regulations which have yet to be published. We understand this is to align this change with the introduction of e-balloting and we are waiting a consultation document on that.

Sections 5 and 6 of the Trade Union Act 2016 sets out the information that must be included on a ballot paper and requires unions to specify how many members were entitled to vote and whether minimum thresholds have been met.

This clause will amend the Trade Union and Labour Relations (Consolidation) Act so that sections 5 and 6 are repealed. This will mean that a trade union will be required to ask its members which type of industrial action they want to take part in and then the type of action the majority of members vote for will be the protected action.

This will come into force two months after the ERB receives Royal Assent.

Section 4 of the Trade Union Act 2016 required the Secretary of State to commission an independent review of electronic balloting for all industrial action. This review was published and recommended that electronic balloting be tested. A response was never published and so no action was taken.

This will repeal section 4 of the Trade Union Act 2016 although the Government (as noted in its factsheet) is committed to introducing ‘modern and secure electronic balloting’ and promises to launch a working group ‘with full rollout implemented following Royal Assent of the Employment Rights Bill’.

This section will come into force two months after the ERB receives Royal Assent.

Section 8 of the Trade Union Act 2016 requires that the notice a trade union must give an employer of industrial action (post ballot) is 14 days.

Originally, the ERB reduced this to 7 days. Amendments made in March 2025 increased that to 10 days.

This will come into force two months after the ERB receives Royal Assent.

A a trade union is required to provide information to an employer ahead of an industrial action ballot as to the number of employees concerned in each category or workplace and to provide an explanation of how the total number of employees concerned was determined by the union. Similarly, the union must also provide information to an employer ahead of any industrial action as to the number of employees in each category that are expected to take part in the action.

Amendments made in March 2025 have simplified what information the trade union will need to supply in both these circumstances.

This will come into force two months after the ERB receives Royal Assent.

An industrial action ballot is effective for six months after the ballot (it can be increased up to 9 months by agreement between the employer and trade union).

The amendment made in March 2025 to the ERB extends this time period to 12 months without the possibility of any extension.

There are certain requirements placed on trade unions to ensure they are protected from certain liabilities. This included appointing a picket supervisor and giving the Police the supervisor’s name and location of the picket.

These requirements will be removed.

This will come into force two months after the ERB receives Royal Assent.

There is a gap in the law as demonstrated by the Supreme Court’s decision in Secretary of State for Business and Trade v Mercer. The court demonstrated that there is no protection against sanctions (short of dismissal) taken against an employee who engages in lawful strike action.

This section will give an employee this protection against any detriment they may suffer at the hands of their employer where the specific purpose of that treatment was to deter the employee from engaging in industrial action or to penalise them for continuing to do so. The Government has promised regulations which will outline what constitutes a ‘detriment’.

We have no specific date for this change to come into force and await draft regulations on the definition of a detriment.

Employees who are taking part in lawful industrial action are protected from dismissal for a protected period. This period is currently 12 weeks.

This 12-week limit will be removed and so the employee will be protected for the length of the strike action.

We have no specific time frame for this change.

The unpopular Strikes (Minimum Service Levels) Act 2023 gives the Government the power to set minimum service levels during strikes in essential services and certain sectors.

This Act will be repealed as soon as the ERB is passed.