Employers prepare for the first phase of Employment Rights Act industrial relations changes

The initial tranche of reforms to be introduced as part of the Employment Rights Act, which was passed just before Christmas, will take effect from 18 February 2026, opening the door to a radical shift in how unions interact with members, potential recruits and employers.

“These reforms - particularly those on union recognition and union access - may be most relevant to those employers who don’t currently have established relationships with trade unions and who historically haven’t engaged much with industrial relations,” explained Anthony Convery of Pinsent Masons.

“The new measures give unions greater rights to seek involvement in workplaces where no formal relationship exists, so some clients may experience increased union activity for the first time.”

“Trade unions will also use these new rights to target elements of the workforce that they have traditionally found it difficult to secure a foothold within e.g. junior office-based staff.”

The first phase of implementation and focusses on simplifying industrial action processes and strengthening associated employee protection.

Under the new rules, restrictions around the threshold for industrial action ballots will change, with the Employment Rights Act removing the requirement for a 40% support threshold to be met before industrial action can be called in important public services.

It also reduces the amount of information unions must include when giving employers’ notice of ballots,

and what information is needed on a voting paper for industrial action. Ballot result information notified to employers and employees is also simplified.

The mandate period for a successful ballot is extended under the Act – rising from six months to a year, although this and other changes to ballot processes only apply for ballots opened on or after 18 February as part of the transitional arrangements for the Act’s implementation.

The notice period for industrial action beginning has also been shortened, from 14 days to 10 days, and information unions must provide employers in industrial action notices will be simplified.

The Act also removes restrictions on the protected period for employees from unfair dismissal for taking part in protected industrial action. Previously this applied to the first 12 weeks of action, but now is in effect irrespective of how long industrial action takes place.

Picket supervision union obligations are also repealed in February.

Other changes on 18 February include rules requiring unions to secure express options for political fund contributions and to hold 10-yearly maintenance ballots being abolished, with members instead receiving a notice every 10 years reminding them of their right to opt out.‑ins for political fund contributions and to hold ten‑yearly maintenance ballots being abolished, with members instead receiving a notice every ten years reminding them of their right to opt out.

Facility time publication requirements and check-off restrictions will also be repealed for public sector employers.

Timeline concerns

Several trade union consultation exercises have been conducted by the government ahead of the Employment Rights Act coming into effect – most recently just before Christmas, which covered access rights and the employers’ requirements to inform staff of their rights to join a union.

For employers, concerns have arisen whether this will give them enough time for all parties to satisfactory reach agreements around access, explained Convery.

He said: “Employer feedback around this – which we received from clients across a wide range of sectors in an engagement exercise before Christmas – has highlighted concerns that the government’s proposed timescales for negotiating access with a trade union, and those for allowing access once agreement was reached, were too short to accommodate, with an expectation that unions would likewise find proposed timeframes logistically difficult, given their own demands on scheduling and availability.”

Concerns about health and safety issues and security implications – including cyber security, given digital access requirements – have also surfaced, as has the issue of enabling access to workplaces which are not owned or controlled by an employer itself.

“For example, how would an employer handle the logistics of granting access to construction workers and outsourced workers on a third-party site?” added Convery,

The new rules around a duty on employers to inform workers of their right to join a union generated employer concern that any government drafted standard statement needed to be properly balanced, reflecting the counter position that employees also have a right not to join a union.

The output of this engagement exercise was shared with the government and clients, to help deepen understanding around more practical aspects of the shift in rules which employers will now have to respond.

Industrial relations consultation processes will continue into the rest of 2026  – dispute service ACAS has opened a consultation recently into time off for union activities and duties, for example.  The government will also consult on what detriments should be prohibited when detriment protection is extended to cover employees participating in industrial action.

The next phase of reforms is due on 6 April and will largely focus on facilitating recognition processes. Repeal of the 50% industrial action ballot turnout threshold is also earmarked to be implemented, alongside electronic balloting, in April.

A further phase will follow on 1 October which will introduce new rights for unions, including unrecognised unions, to request digital and physical access to workplaces. New rights around access to facilities and paid facility time off for union representatives, including union equality representatives, will also benefit unions on this date.

Individual protections for employees will be bolstered to include a right to be regularly informed of their right to join a union.

Detriment protection for participating in industrial action is also expected to come fully into force in October unless regulations follow sooner on what will be classed as a ‘prescribed detriment”.

“As legal frameworks for the new rights develop in 2026, being able to adapt and engage strategic approaches which balance compliance with an employer’s long-term industrial relations and commercial goals will be a challenging one which needs careful and expert engagement,” warned Convery.

“Further government consultations and statutory codes of practice will be critical to shaping employers’ implementation strategies”.