The Employment Rights Bill and trade unions: why employers should act now

In addition to making strike action easier to call, the most significant proposed change is a new right for trade unions to access employees they do not currently represent. The operation of this right is still subject to consultation, but it could take the form of:

• Physical access to workplaces to hold meetings; or
• Digital access via email or intranet platforms.
  

Alongside this, the government will make it easier for unions to gain formal recognition, lowering balloting thresholds and potentially reducing how many employees must make a request before it must be considered. Together, these changes create a strong incentive for unions to target new sectors and employers - particularly those where they are not currently active, or with adjacency to their current areas of strength.

Employers now face a strategic crossroads. One option is to wait and see. But this carries risk: a union could request access or recognition unexpectedly, leaving the employer with little control over which union engages with their workforce, or how that engagement unfolds.

The alternative is to act now. For all employers who recognise some likelihood of increased union interest, this is the most sensible option. Employers who are prepared to think strategically should consider on an informed basis:

• How they want to engage with their workforce collectively;
• What the pros and cons are for their organisation of union engagement and/or recognition in their business; and
• What would be their response would to a union access or recognition request, with senior stakeholders fully briefed and ready for the consequences of whichever approach they choose to take.

In some cases, engaging with a union could offer operational advantages - particularly in sectors with large, dispersed or lower-skilled workforces where communication and change management are more complex. All of this will need expertise, careful consideration and active stakeholder management.

Another key reform on the “Make Work Pay” agenda is a significant restriction on the use of fire and rehire as a means to change terms and conditions. That is worthy of its own separate blog, but it’s also relevant to union engagement.

In very short summary, form the point of implementation (most likely October 2026), employers will only be able to rely on fire and re-hire in cases of extreme financial hardship - potentially near-insolvency – and generally only when making non-material changes. Changes to pay, hours and holiday will, almost always fall under the restriction, depending upon how contracts are drafted.

For a large or disparate workforce, this may make collective negotiation of terms and conditions more attractive. Where a union is recognised, employers can negotiate changes to terms and conditions that apply across the entire represented workforce, without the need for individual agreement.

As employers consider their approach to collective employee engagement, they should also review key elements of their employee value proposition. Areas such as reward structures and pensions - traditionally high on employee and therefore union agendas - should be factored into any strategic planning. A workforce with a fair, transparent and modern reward strategy is much less likely to be interested in raising grievances via a trade union.

This is not a call to for more union recognition; rather, it is a call to plan, prepare, and in doing so protect the business. Non-unionised employers have a 15-month window to assess their position, engage with stakeholders, and develop a strategy that protects their interests while aligning with the evolving regulatory landscape. Ignoring these developments is no longer a viable option. The question is not whether change is coming but how prepared you’ll be when it arrives.