By Iain Birrell, Member, Trade Union Law Group &
Jo Seery, Professional Support Lawyer
Introduction
In this, the second of our weekly feature articles on the Employment Rights Bill, we focus on changes to the law on trade union recognition.
In ‘Making Work Pay’, Labour committed to ‘simplify the process of union recognition and the law around statutory recognition thresholds, so that working people have a meaningful right to organise through trade unions.’ In its ‘New Deal’, Labour said it would ‘end the current complexity and remove barriers to workers being collectively represented by a recognised trade union in their workplace,’ review the thresholds, and ‘consult on and consider whether unions should automatically be entitled to statutory recognition where 50% or more workers in a bargaining unit are members.’ In this article we analyse whether that been achieved and what has changed more broadly.
What’s included?
The main changes are:
- The entry requirement of having 10% membership density in the proposed bargaining unit (PBU) is likely to change, but currently, we do not know what to, other than it will be between 2% and 10%.
- The need to show that over 50% of the PBU is likely to support recognition is being scrapped.
- The need for at least 40% of the PBU to ultimately vote for recognition is also being scrapped.
- Measures designed to prevent an employer sabotaging or slow-walking the application.
- An obligation to provide certain relevant information within five working days of a recognition request, and to update it if a different PBU is agreed.
- Freezing the size of the PBU to prevent dilution of membership density with new entrants.
- A tighter statutory timetable for agreeing terms under which the union can access workers in the PBU in the period between when the CAC accepts the application is valid, and when it makes a final decision, but where the PBU itself is still in contention.
- Extend the application of the Code of Practice: Access and unfair practices during recognition and derecognition ballots.
- Define unfair practices and extend the time during which the parties may complain to the CAC.
- Applying the ban on unfair practices earlier in the process.
- The power to order breaches to be remedied, and to impose recognition as a penalty for non-compliance.
- Judging derecognition applications on the basis of the bargaining unit’s original size and ignoring any deliberate bloating of it to reduce membership density.
What’s Not Changed
The existing ban on an application where there is already a recognised trade union in place does remain. However, its potential impact is reduced by disapplying that provision to unions which are not ‘independent’ and which were recognised as a response to the request for recognition itself. In this context, an independent trade union is one which is not under the employer’s direction or control.
Similarly, the 3-year lockout provisions where an application is unsuccessful are to remain in place.
Comment
In its ‘Next Steps to Make Work Pay’ (October 2024), the government set out its commitment to ensure that ‘people are more empowered in the workplace’ and that these statutory recognition measures ‘strengthen the collective voice of workers through trade unions.’
The simplification measures are going to be welcomed by workers. The other measures in the bill about informing employees about the benefits of trade union membership and statutory rights of access for a trade union to recruit new members will raise awareness of the value of trade unions. Separate consultations are underway about the form and content of the rules surrounding both those changes. It seems likely, however, that the information leaflet will mention the so-called ‘union wage premium’, which is the average difference in wages between unionised and non-unionised workplaces. The Office of National Statistics currently calculates this as being 4.9%.
Nevertheless, increased membership means more influence in the workplace for working people, and it makes voluntary recognition by employers more likely. Statutory recognition is limited to pay, hours and holidays.
The new measures are welcomed, but there is still much detail left to separate regulations. Consultations on this close on 18 December 2025 with an implementation target of April 2026. We are responding to these consultations and watch developments with interest.
Read article one in our weekly series on the Employment Rights Bill:
Employment Rights Bill Article: IA & MSL’s
