EMPLOYMENT RIGHTS BILL: IN DEPTH SERIES – TRADE UNION RIGHTS

The Employment Rights Bill, heralded as a landmark reform for the workplace, is set to bring significant changes to employment law in the UK. While much of the focus has been on flexible working and family leave entitlements, one transformative aspect of the Bill is its provisions relating to trade union rights. This article delves into the key changes proposed under the Bill and their potential impact on both employers and employees.

Background: The Role of Trade Unions
Trade unions play a crucial role in representing workers, negotiating collective agreements, and addressing workplace disputes. However, in recent years, unions and their members have raised concerns over what they perceive as insufficient protections against anti-union practices and challenges to their rights to organise and operate effectively. A key proposal is a repeal of the Trade Union Act 2016 to set a new foundation for rights to be built on.
The Employment Rights Bill seeks to address some of these concerns by bolstering protections for trade union activities and enhancing the rights of union representatives and members.

Key Provisions of the Bill Related to Trade Unions

1. Enhanced Protection Against Detriment for Union Activities
Under the Bill, employees who engage in lawful trade union activities are afforded stronger protection from detrimental treatment by their employer. This includes participation in industrial action, attending union meetings, or acting as a union representative.
The key changes include:

• Broader Definition of Detriment: The Bill expands the interpretation of “detriment” to include subtle forms of employer retaliation, such as exclusion from training or career progression opportunities.

• Burden of Proof: A shift in the burden of proof requires employers to demonstrate that any alleged detriment was unrelated to an employee's union activities.

• Updated blacklisting regulations: Commenting that blacklisting regulations haven’t been updated for over a decade, the Bill explains this will be updated to reflect advances in technology to cover things like automated screening.

2. Streamlined Balloting Processes for Industrial Action
The Bill simplifies the balloting process for industrial action, making it more efficient for unions to organise. Key changes include:

• Electronic Balloting: Unions will now have the option to conduct ballots electronically, reducing logistical barriers and increasing participation rates.

• Notification Periods: While the notice period for industrial action remains unchanged, there is now greater flexibility in how unions can communicate with members during the ballot process.

3. Protection for Agency Workers During Strikes
The Bill reinstates protections for agency workers during strikes, reversing recent amendments that allowed agency staff to replace striking workers. This change is seen as a recognition of the fundamental right to strike and a move to prevent the undermining of collective action.

4. Strengthened Rights for Union Representatives
Union representatives play a critical role in workplace negotiations and dispute resolution. The Bill introduces enhanced rights for representatives, including:

• Increased Time Off for Union Duties: Employers must provide adequate time off for representatives to fulfil their union-related responsibilities.

• Access to Facilities: Employers are required to grant union representatives reasonable access to workplace facilities, such as meeting rooms and communication tools.

• Employment contract rights: the Bill will introduce a requirement for employment contracts to include a statement on employees’ union rights.

5. Reforms to Union Recognition Processes
To address the challenges unions face in achieving recognition, the Bill introduces reforms aimed at simplifying the process:

• Streamlined Application Process: Unions seeking recognition will benefit from a faster and more straightforward application process.

• Strengthened Remedial Powers: The Central Arbitration Committee (CAC) will have greater authority to impose remedies in cases where employers fail to engage in good faith during recognition negotiations.

Practical Implications for Employers

Increased Compliance Obligations
Employers must ensure they fully understand and comply with the expanded protections for union members and representatives. This includes reviewing policies on industrial action, updating internal procedures, and providing training for management on the revised legal framework.

Potential for Increased Union Activity
The Bill’s reforms may encourage greater union engagement and activity, particularly in sectors with historically low levels of unionisation. Employers should prepare for a possible uptick in recognition requests and industrial action.

Balancing Flexibility and Stability
While the Bill strengthens worker protections, employers must balance these changes with the need to maintain operational stability. Open and constructive dialogue with unions will be crucial to navigating the new landscape effectively.
Perspectives and Criticisms
The Bill has been met with mixed reactions:

• Union Perspective: Trade unions have broadly welcomed the changes, viewing them as a long-overdue step towards fairer treatment of workers and enhanced collective bargaining power.

• Employer Concerns: Some employers have raised concerns over the administrative burden and potential for increased industrial unrest. There is also apprehension about the impact on business continuity during strikes.

A New Era for Industrial Relations?
The trade union provisions in the Employment Rights Bill represent a significant shift in UK employment law. By strengthening protections for union members and streamlining processes for industrial action and recognition, the Bill aims to foster a more balanced and equitable relationship between employers and employees.

Employers should take proactive steps to adapt to these changes, ensuring compliance and fostering positive relationships with unions. For unions, the Bill provides an opportunity to rejuvenate their role in the workplace and advocate more effectively for their members.
As these reforms take shape, the employment landscape will undoubtedly evolve, requiring all parties to remain informed and adaptable.

Next Steps
As with much of the Employment Rights Bill, the next phase is open for consultation. The consultation seeks views on:

• Simplifying the amount of information unions are required to provide in industrial action notices;

• Strengthening provisions to prevent unfair practices during the trade union recognition process;

• Removing the 10-year ballot requirement on political funds;

• Securing a mandate for negotiation and dispute resolution;

• Extending the expiry of the strike mandate;

• Reducing the industrial action notice period;

• Updating the law on repudiation of industrial action;

• Updating the law on prior call (unofficial calls to take industrial action); and

• The enforcement mechanism for right of access.

If you have any questions about how the Employment Rights Bill may impact your organisation, or require advice on engaging with trade unions effectively, please contact our Employment Law team. We are here to support you through these changes and ensure your business is fully prepared.

This article is part of a series of in depth looks at different elements of the Employment Rights Bill.

For more articles in the series, see our full range of commentary here.