Employment Rights Act 2025 essentials: Trade union reforms

Author: Nick Chronias

In the latest part of our series exploring the detail of the Employment Rights Act 2025, we look at the changes to trade union-related laws and the potential impact on employers. We look separately at the related topic of industrial action ballots.

The Government's rationale

"In recent years, trade union legislation has presented a significant barrier to effective, positive industrial relations in the UK, and this government has committed to resetting and modernising our industrial relations framework…

"We will update the legislative framework in which trade unions operate aligning it with modern work practices, removing unnecessary restrictions on trade union activity and ensuring industrial relations are underpinned by collaboration, proportionality, accountability, and a system that balances the interests of workers, businesses and the wider public.

"[These reforms are to] strengthen the voice of working people."

Source: Government response to Making Work Pay: creating a modern framework for industrial relations

What is changing?

Notice of right to join a trade union

Employers will have to provide workers with a written statement informing them that they have the right to join a trade union, at the same time as the written statement of key terms and conditions of employment that employers must provide under s.1 of the Employment Rights Act 1996. Employers will also have to reissue the statement at other times, which will be specified in regulations which are yet to be published.

If an employer fails to provide a statement as required, a worker will be able to bring a claim in the employment tribunal and may be entitled to an award of up to two weeks' pay.

Implications for employers

The Government's consultation sought views on how the new duty should work in practice. It including proposals on the content and form of the statement, the manner in which it must be delivered to both existing and new workers, and how often it must be reissued. Currently, the Government is proposing that a standard statement be issued to new employees and an indirect reminder (such as notices or intranet content) be issued annually or bi-annually to existing employees.

Trade unions believe informing and reminding workers of their right to join a trade union could lead to increased worker interest in trade union membership. This, combined with the proposals to give unions a new right of access to workers and simplify the trade union recognition process, has the potential to lead to greater union presence in many workplaces and an increase in the number of employees whose terms are determined by collective bargaining. That is certainly trade unions' and the Government's intention.

Trade union right of access

The Act gives unions 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 other than in specified circumstances.

It does this by establishing a process for making access agreements between employers and unions. The Central Arbitration Committee (CAC) is given powers to order access based on default statutory terms where the parties fail to reach agreement and a fast-track approval process for agreements that meet certain criteria.

Access agreements will be presumed not to be legally binding, but the employer or the union will be able to complain to the CAC in the event of a breach.

"Access" will include communication with workers by any means (effectively, covering digital as well as physical access). Digital access will have to comply with existing data protection laws so employers cannot be required to provide employees' personal data to facilitate this digital access.

The consultation on this provision, which has now closed, put forward proposals on:

• how unions will request access and how employers respond;
• what information must be included in the access request and response;
• the process for notifying the CAC of access agreements, and applying to the CAC in circumstances where access has not been agreed;
• factors the CAC must take into account when determining whether access should be granted;
• the terms of access agreements; and
• fines for breaches of access agreements (£75,000 for an initial breach and £150,000 for subsequent ones).

One significant proposal made in the consultation is that trade unions' right of access should not apply to employers with fewer than 22 employees. Micro-employers will be pleased that the Government is proposing that they should be exempt.

The short timeframes for completing a CAC process (for instance, the Government proposes employers have only five working days to respond to a union's access request), the frequency of access and the level of fines for lack of compliance are all significant and, if adopted, would mark a major change in approach to collective bargaining.

Implications for employers

The right of access offers trade unions much greater visibility among workers. This, combined with the proposals to require employers to provide workers with a statement of their right to join a trade union and simplify the trade union recognition process), has the potential to lead to greater union presence in many workplaces and an increase in the number of employees whose terms are determined by collective bargaining.

Given that the fines proposed for non-compliance are potentially substantial, all organisations with 22 or more employees will need to prepare for the right of access and familiarise themselves with the process and timeframes for responding to and negotiating any access requests. 

However, whether trade unions take up the right of access is likely to depend on their resources (particularly how many officials they have available to attend workplaces). It is likely they will focus on obtaining access agreements with larger employers first.

Trade union recognition

Under the current law, the CAC can accept only an application for statutory trade union recognition if it is satisfied that:

• at least 10% of the workers in the proposed bargaining unit are union members; and
• a majority of the workers in the bargaining unit are likely to be in favour of the union being recognised.

Additionally, at least 40% of those in the proposed bargaining unit must vote in favour of recognition in any statutory recognition ballot for recognition to be granted.

The Act gives the Government the power to make regulations reducing the current 10% threshold to anywhere between 2% and 10%, and removes the requirement that the majority of workers would be likely to be in favour of recognition. The Act also removes the 40% threshold, so only a simple majority of those voting will be required to secure statutory recognition.

Provisions designed to prevent unfair practices during the trade union recognition process are strengthened under the Act, eg by preventing employers from increasing the number of employees in the bargaining unit via recruitment once the CAC has accepted an application for recognition, or agreeing recognition with a non-independent union to stop an independent union gaining recognition.

As now, applications to the CAC to reassess the appropriateness of a bargaining unit will not be permitted for three years after a statutory declaration of recognition has been granted.

Implications for employers

These changes make union recognition easier to achieve and employers may find themselves dealing with an increase in union recognition applications.

Many employers unsuccessfully challenged the removal of the 40% threshold in statutory recognition ballots: if turnout is low because the workforce is broadly apathetic, then a minority of dedicated union members can secure recognition (and collective bargaining) for the whole workforce. That is especially true when combining it with the lowering of the membership threshold (assuming for a minute that it is set at 2% of the proposed bargaining unit). For example, if there are 1,000 workers in a proposed bargaining unit, recognition would be secured if 20 of them are union members, 70 vote in a recognition ballot and 36 vote yes.

Time off and facilities for union officials and reps

Trade union officials already have a right to a reasonable amount of paid time off to carry out their union duties (in relation to collective bargaining negotiations, collective redundancy consultation and TUPE transfers) and to undergo training relevant to those duties. Similarly, trade union learning representatives have a right 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 Act includes a requirement for employers to provide them with facilities for carrying out their duties/activities should they request this.

The Act also introduces a new right to a reasonable amount of paid time off, and the provision of facilities, for 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).

Implications for employers

These changes mean union officials and representatives will be able to complain to an employment tribunal if the employer fails to comply with these requirements, and the tribunal will have the power to award compensation if it finds against the employer.

The burden of demonstrating compliance will fall on the employer, meaning there is a real incentive for employers to ensure they comply with these changes.

Protection from detriment for union reps and members

The Act states 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. The gateway to this protection is participation in industrial action called by a trade union following a legally compliant process concerning a statutorily defined trade dispute.

Implications for employers

The new protection from detriment addresses 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 lawful industrial action. The protection will apply only in respect of detriments of a "prescribed description". This reflects the Supreme Court judgment in Mercer, where it 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. We anticipate satellite disputes over this, for example on where offensive behaviour on a picket line is not protected by this new right.

Enhanced protection from "blacklisting"

The Act strengthens the prohibition on blacklisting - compiling information on individuals concerning their trade union membership and activities, with a view to that information being used by employers or employment agencies to discriminate in relation to recruitment or treatment: eg deciding not to employ someone, or dismissing them. It does this by giving the Government power to introduce regulations prohibiting the use, sale or supply of lists of union members or people who have taken part in trade union activities for the purposes of discrimination, even where the lists were not created for such purposes, or where lists are compiled by third parties who don't have a direct employment relationship with the individuals being blacklisted.

This proposal is intended to cover, for example, the situation where AI compiles a list (not with a view to discriminate), but that list is subsequently used, sold or supplied by a person with a view to discriminate.

Australia already has similar right of trade union access laws to those being introduced by the Act. For those seeking examples of how this law could apply in principle, it is worth looking at publicly available materials of how its equivalent operates in Australia.

What happens next?

In its implementation roadmap, the Government proposes the following timetable for implementing these changes:

Change	Implementation date
Notice of right to join a trade union	October 2026
Trade union right of access	October 2026
Trade union recognition	April 2026
Time off and facilities for union officials and reps	October 2026
Protection from detriment and dismissal for union reps and members	October 2026
Enhanced protection from "blacklisting"	2027

What has already changed?

On 18 February 2026, the Act removed conditions that were introduced to the check-off process in the public sector. Check-off is where employers deduct trade union subscriptions from workers' pay on the union's behalf and transfer the money to the union. The Act repealed restrictions that only permitted such deductions where workers had the option to pay their subscriptions by other means and the union made reasonable payments to the employer to cover its costs of administering check-off.

From 18 February 2026, an employee is regarded as automatically unfairly dismissed where the sole or principal reason for dismissal is that they took protected industrial action, regardless of the length of the industrial action (previously protection existed for 12 weeks, subject to some exceptions).