Government responds to consultations on key industrial relations changes under the ERA 2025

Contents

Trade union rights of access to workplaces

Protection from detriment for taking protected industrial action

Electronic and workplace balloting for statutory trade union ballots

Revised code of practice on unfair practices during trade union recognition and derecognition processes

Updated Acas Code of Practice on Time Off for Trade Union Duties and Activities

Trade union rights of access to workplaces

The ERA 2025 provides trade unions with a right of access to workplaces to allow them to meet, represent, recruit or organise workers (regardless of whether they are members of a trade union), and to facilitate collective bargaining.

As we reported here, on 8 April 2026 the government published a draft Code of Practice setting out how the process for employers and unions to agree access arrangements should operate, and how the CAC should deal with applications for access where the parties fail to reach agreement. The consultation on that draft Code closed on 20 May 2026, and the government published its response, alongside an amended draft Code, on 6 July 2026. The government has also published two sets of regulations covering (a) the process for requesting access, and (b) the information that must be included in applications, which will bring the right of access into force on 30 October 2026.

The government's response explains that it has taken on board feedback received during the consultation and has made numerous changes to the draft Code to improve clarity and certainty. For example:

• In response to concern about a lack of clarity as to which person at the employer access requests should be directed to, the amended draft Code now recommends that requests are sent by email, to an email address that the employer should make "every effort" to provide. Where the employer does not provide an email address, the Code states that the union may use an email address that is made publicly available by the employer for general communications with it, or other means.
• The amended draft Code notes that there is no legal requirement for trade unions to use the standard form template access request that is included in the Annexes to the draft Code. However, it encourages use of the template, highlighting that it details all of the information required in an access request. The amended draft Code also flags that employers should not regard minor accidental clerical or administrative errors in an application as a reason to reject the application, and encourages employers and unions to work together to correct any errors.
• Employers have up to 15 working days to respond to an access request. The amended draft Code clarifies that this timeframe starts to run from the day the access application is submitted, not when it is passed on to the correct person or team within the employer. This creates a risk that the deadline for response may be missed, particularly for large and multi-site employers.
• The scenarios in which the CAC may reasonably refuse access include where the employer already recognises an independent trade union, is involved in an ongoing statutory recognition process, or has a statutory access agreement with another union in respect of one or more of the workers covered by the access request. The amended draft Code specifies that if an access request covers some workers who are covered by one of these scenarios and some who are not, the CAC is still able to impose an access agreement on the workers who do not fall within those circumstances.
• Many employers had raised concerns about health and safety issues in relation to granting physical access to their workplace. The amended draft Code acknowledges that there may be some very limited scenarios where it may be appropriate to refuse access where access may jeopardise health and safety. However, it notes that in most workplaces, access should be permissible without health and safety concerns, and flags that employers should raise any health and safety considerations in their response to an access request and discuss these with the union during negotiations.
• The 'model' terms would allow for access on at least a weekly basis. The amended draft Code specifies that this means a visit or meeting that the workers covered by the access agreement have the opportunity to engage with, whether physically or digitally. It specifies that weekly access would therefore not be exhausted if, for example, a trade union official accompanied an individual worker to a disciplinary hearing as their companion. It also emphasises that simply cascading information received from the union would not constitute an instance of weekly access, unless the trade union chooses to treat it as such.
• With regard to the timing of access meetings, the amended draft Code specifies that access should take place during working hours, and workers should therefore be paid in full for this time. However, the amended draft Code does not make clear how much time off workers would be expected to be allowed for each access meeting.
• The information in the original draft Code on ensuring the privacy of access meetings remains largely unchanged. However, the amended draft Code does add in respect of digital access that employers should not seek to record or monitor the attendance of online meetings, or monitor worker engagement with digital communications sent on behalf of the trade union, e.g. by tracking which workers have opened an email or clicked on hyperlinks within it.
• On enforcement, the amended draft Code makes clear that unions may submit separate complaints in respect of consecutive breaches at one workplace, and/or concurrent breaches at multiple workplaces. It gives the example of an access agreement covering 100 workplaces, which is breached at five different workplaces. There, the union may bring five separate complaints and, if the CAC upholds those complaints, it may issue five separate penalties. Taken cumulatively, therefore, the penalties issued to the employer may exceed the £500,000 maximum.

What does the amended draft Code on union rights of access mean for employers?

The government has shown its strong commitment to the right of access being a meaningful right for trade unions in its amendments to the draft Code. In contrast, employers will be left disappointed that a number of concerns raised by them have not been addressed.

These amendments do offer some helpful clarification on the operation of the process for requesting and negotiating access, and it is encouraging that this includes greater emphasis on encouraging the parties to agree voluntary access in the first instance. However, the amended draft Code specifies that trade unions are not required to first seek voluntary access agreements outside the statutory process as a pre-condition for making a statutory application for access. This could result in some unions jumping straight to the statutory process, and it is clear that both managing statutory access requests and facilitating access will impose a significant burden on employers. A particular area of concern will be where employers receive multiple requests from different unions at the same time, as the amended draft Code still does not provide real clarity on this.

It is also concerning that the government has not taken on board employers' concerns about the interaction of trade unions' right of access with employers' duty to take all reasonable steps to prevent harassment of their employees. Although the amended draft Code does note that the CAC must regard as reasonable a term in an access agreement that requires the union officials seeking access to comply with all reasonable instructions given by the employer, there is still nothing in the draft Code that specifically addresses the issue of potential harassment by union officials and whether employers can then deny them access. Similarly, employers of young workers will be concerned that the amended draft Code contains only limited reference to safeguarding, noting that the CAC must have regard to whether provision for safeguarding needs to be included in the access agreement, but commenting that where trade union officials have no contact with children or vulnerable adults, in most cases a DBS check will not be required.

Finally, it is clear from the amended draft Code that the financial penalty regime will have teeth and the prospect of significant fines, especially for employers that operate across multiple workplaces, is very real.

Make Work Pay: draft code of practice on trade union right of access

Back to Overview

Protection from detriment for taking protected industrial action

The Employment Rights Act 2025 (ERA 2025) provides that a worker will have the right not to be subjected to a detriment by their employer (by any act or deliberate failure to act), whose sole or main purpose is to prevent or deter the worker from taking protected industrial action, or to penalise them for doing so. (By way of reminder, protected industrial action is industrial action that has been lawfully organised by the union in compliance with the balloting and notification requirements, and it is endorsed (and has not subsequently been repudiated) by the union.)

The new protection is intended to address the gap in the current law that was identified by the Supreme Court in the Mercer case, that workers currently have no protection against sanctions short of dismissal for taking part in protected industrial action (see our report on Mercer here).

In Mercer, the Supreme Court said it couldn't rule out the possibility that there may be some circumstances in which it would be legitimate for employers to subject workers to a detriment for participating in industrial action. The ERA 2025 reflected this by providing for protection only in respect of detriments of a "prescribed description", which would be defined in regulations.

As we reported here, the government therefore ran a consultation asking whether protection should apply in respect of all detriments that are imposed for the sole or main purpose of penalising, preventing, or deterring a worker from taking industrial action, or only in respect of specific detriments listed in regulations.

On 23 June 2026, the government published its response to the consultation, in which it confirmed that protection will apply to all detriments that are imposed for a prohibited purpose, as this offers the strongest protection for workers. However, the consultation response confirms that proportionate deductions from pay during a strike or other industrial action do not constitute a detriment, and this will continue to be allowed to the same extent as under the current law. The draft regulations that will bring the protection into effect therefore state that they do not affect the common law rules enabling the deduction of pay on account of a worker having taken part in protected industrial action.

The draft regulations provide for this change to come into force on 30 October 2026.

What do the new protection from detriment provisions mean for employers?

The government's broad approach to protection from detriment for participating in protected industrial action means that any perceived negative treatment of a worker who is proposing to take or has taken part in such action could give rise to a detriment claim. For example, in the past, some employers have withdrawn discretionary perks and benefits from striking workers, but this may well fall foul of the new rules. In order to avoid liability, employers will need to be able to demonstrate that their reason for any negative treatment was unrelated to the industrial action.

Make Work Pay: protection from detriments for taking industrial action

Back to Overview

Electronic and workplace balloting in statutory trade union ballots

Statutory trade union ballots are governed by the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act). Under the 1992 Act, ballots arranged by the Central Arbitration Committee (CAC) for statutory trade union recognition and derecognition can be run either by post or as in-person workplace ballots, while ballots concerning proposed industrial action can only be run by post. However, postal voting is considered outdated and costly, and as driving low participation, particularly amongst younger workers.

The government already has the power under the Employment Relations Act 2004 to make an order introducing electronic balloting (e-balloting) and other alternative forms of voting (such as hybrid voting and in-person workplace ballots). In November 2025, it published a consultation and a draft code of practice which would provide guidance on how such alternative forms of voting would operate (see our article here).

On 22 June 2026, the government published its response to the consultation, alongside an updated draft code of practice and a draft order to implement the proposed changes. The government has confirmed that it will introduce the following voting methods:

• E-balloting, where the distribution of voting materials, and the casting and return of votes, take place entirely through electronic means.
• Hybrid voting, where a physical ballot paper is distributed to voters by post, and they can return it either by post or electronically.
• Workplace balloting, where voters cast their ballot in-person in an appropriate location at or near their employer's premises, as agreed between the employer and the trade union.

Changes to the permitted voting methods will be implemented in phases.

During phase one, e-balloting and hybrid voting will be introduced for industrial action ballots, political fund / resolution ballots, union elections, and union merger ballots. Workplace balloting will only be introduced for industrial action ballots during this phase. The government will also establish a Senior Oversight Board made up of businesses, trade unions, cyber security experts and independent scrutineers, that will provide views on the implementation of the different methods of balloting.

Phase two will see the introduction of e-balloting and hybrid voting for trade union recognition and derecognition ballots. The government intends to make amendments to the relevant provisions of the 1992 Act to put these new voting methods in place during 2027.

In phase three, the Senior Oversight Board will assess implementation and consider potential enhancements to the e-balloting and workplace balloting regime.

The government's ERA 2025 implementation timeline indicates that it intends to introduce e-balloting and workplace balloting in August 2026. The draft code of practice and draft must be approved by both Houses of Parliament before they can be brought into force. If approval is obtained before the summer recess then implementation in August may still be achievable.

What does the introduction of e-balloting and workplace balloting mean for employers?

The primary responsibilities set out in the draft code of practice fall on the trade union, although the employer's agreement to the conduct of a workplace ballot is required. Employers are effectively given no voice or recourse over concerns about e-balloting or hybrid processes dealt with in the draft code.

The conduct of statutory union ballots is subject to some quite exacting requirements. However, one of the changes made to the draft code following the consultation is the inclusion of a section entitled "Small accidental failures to be disregarded". This provides that failure to comply with certain provisions set out in the 1992 Act may be disregarded if the failure is accidental and on a scale which is unlikely to affect the result of the election or ballot. The draft code specifies that deliberate failure cannot be disregarded, and that is for the courts or Certification Officer to determine what is permitted to be disregarded. This may make it more difficult for employers to challenge the validity of a ballot on the basis that the precise statutory requirements were not met.

The ERA 2025 envisages the repeal of the 50% turnout threshold requirement for industrial action ballots. The government had stated that it intends to bring this provision into effect to align with the introduction of e-balloting. However, draft regulations on the repeal have not yet been published, and the ERA 2025 requires the Secretary of State to have regard to the actual or likely effect of e-ballots on turnout before bringing the repeal of the 50% turnout requirement into force. It therefore remains to be seen when the 50% turnout threshold will be repealed.

Government response to the consultation on the draft code of practice on electronic and workplace balloting for statutory union ballots

Draft code of practice on electronic and workplace balloting for statutory union ballots

Back to Overview

Revised code of practice on unfair practices during trade union recognition and derecognition processes

The ERA 2025 will strengthen the provisions designed to prevent unfair practices during the trade union recognition process, e.g. by preventing employers from increasing the number of employees in the bargaining unit via recruitment once CAC has accepted an application for recognition, or agreeing recognition with a non-independent union to stop an independent union gaining recognition.

The government published a consultation on access and unfair practices during the recognition process on 4 February 2026. This consultation closed on 1 April 2026, and the government published its response, alongside a revised draft Code of Practice on access and unfair practices during the recognition and derecognition process, on 6 July 2026. The response makes clear that the draft Code under consideration here relates only to access and unfair practices in relation to statutory recognition processes, and not to the general trade union right of access - on which, see above.

The consultation response highlights changes that the government has made to the draft Code in response to feedback received. For example, it has clarified that normal management action that is unconnected to the recognition process will not generally be considered an unfair practice:

• Where there are sound grounds to discipline a worker that are unconnected with the relevant application process, this would not be an unfair practice (and employers are advised to take note of the Acas Code of Practice on Disciplinary and Grievance Procedures).
• Altering shift patterns would not necessarily constitute an unfair practice, provided the management decision was for legitimate need and unrelated to the recognition process.

The consultation response also explains that the government wishes to level the playing field by giving unions earlier and more frequent access to workers during statutory recognition and derecognition processes. The draft Code has therefore been revised to provide for longer and more frequent access meetings, and to make clear that aside from a few exceptions for unlawful, discriminatory or harassing material, employers cannot refuse to distribute union information because they disagree with its content.

The government has committed to amending the existing guidance on the gov.uk website to support employers and trade union representatives participating in the recognition process, and confirmed that CAC guidance will be revised in time for implementation of the changes to recognition in the ERA 2025.

What do the changes to the code on unfair practices during union recognition processes mean for employers?

It is clear from the consultation response and the revised draft Code that the government favours allowing trade unions significant access to workers during statutory recognition and derecognition processes.

Alongside this strengthened access and prevention of unfair practices, the ERA 2025 makes trade union recognition easier to achieve. As a result, employers may find themselves having to deal with an increase in union recognition applications, especially if unions succeed in attracting additional worker interest through their general right of access to workplaces (covered above).

Make Work Pay: recognition code of practice and e-balloting unfair practices

Back to Overview

Updated Acas Code of Practice on Time Off for Trade Union Duties and Activities

Trade union representatives are entitled to a reasonable amount of paid time off to carry out their union duties (covering collective bargaining negotiations, collective redundancy consultation and TUPE transfers) and to undergo training relevant to those duties. Trade union learning representatives are also entitled to a reasonable amount of paid time off to undertake various activities, such as analysing union members' learning or training needs, arranging learning or training, and consulting the employer about such activities.

The ERA 2025 introduces a requirement for employers who permit union representatives and learning representatives to take such time off to provide them with facilities for carrying out their duties/activities should they request this.

The ERA 2025 also extends the right to a reasonable amount of paid time off, and the provision of facilities, to trade union equality representatives (whose role broadly involves working towards eliminating discrimination, advancing equality of opportunity and fostering good relations between people with different protected characteristics).

Acas ran a consultation on updates to its Code of Practice on Time Off for Trade Union Duties and Activities between 20 January and 17 March 2026. On 7 July 2026, the government laid before parliament the final version of the updated draft Code of Practice. This reflects the changes to the law as described above, and sets out examples of the types of activities that may fall within the concept of union duties for each role. It also makes the point that trade union officials and representatives may have more than one role, and may therefore qualify for time off under multiple provisions e.g. they may be both a trade union representative and a learning representative.

On facilities, the updated draft Code flags that, where practical, the provision of facilities should include not just physical facilities but also digital tools used or allowed in the workplace, such as email, digital platforms, intranet and internet, along with a private space to use them.

What do the new rights to time off and facilities for trade union representatives mean for employers?

Assuming the updated draft Code is approved by parliament as expected, the new rights to time off and facilities will be brought into force in October 2026.

Union officials and representatives will be able to complain to an employment tribunal if their employer fails to comply with the new requirements, and the ERA 2025 places the burden of demonstrating compliance on the employer. The tribunal will have the power to award compensation if it finds against the employer, and will have to take the Acas Code of Practice into account where relevant.

Draft Acas Code of Practice on Time Off for Trade Union Duties and Activities

Back to Overview