By Neil Todd, Head of Trade Union Law Group
The government has published its response to the consultation on the use of electronic and workplace balloting for statutory trade union ballots as part of its wider Make Work Pay programme. An updated Code of Practice has also been published and a statutory order laid before parliament to bring the new balloting rules into effect. The Order is subject to review by both Houses of Parliament and is expected to come into force in August 2026.
The Code and proposed approach to electronic and workplace balloting have been updated following an extensive consultation, in which Thompsons, various trade unions and employer bodies made representations. The updated Code incorporates a number of the suggestions made by trade unions (and Thompsons), predominantly around providing less prescriptive and technical detail on the mechanisms for the conduct of electronic ballots. These changes are welcome insofar as they will make compliance with the Code easier, avoid the prospect of the provisions becoming outdated with developing technology, and reduce the risk of litigation arising from minor breaches of the Code.
The core functions of the Code and proposals however remain unchanged, with the government delivering on its commitment to overhauling the legislative landscape for statutory union ballots, which until now have only been able to be conducted by post. Once introduced, the new rules will mean that unions can ballot their members, including on industrial action, electronically, in the workplace (if agreed with the employer), by post, or on a hybrid basis combining various methods. It is hoped that this will increase member participation in ballots.
The new rules will be brought in on a phased basis. Electronic and workplace balloting for industrial action ballots, and electronic balloting for other statutory ballots, including political fund/resolution, some union election and union merger ballots being introduced in August. Electronic balloting for statutory recognition and derecognition ballots is likely to be introduced in 2027.
The consultation marks a significant step towards modernising statutory trade union ballot processes. Unions will need to work closely with scrutineers to develop appropriate processes for the conduct of compliant electronic ballots. Whilst the prescriptive requirements may initially present challenges to unions coordinating member ballots, this is a welcome change that offers an opportunity to greatly increase member engagement.
