Update on the Employment Relations Act

Pic from here

Click here for the latest list (15/4/26) of implementation dates

The Employment Rights Act 2025 has rightly been criticised for falling well short of what is needed to restore individual workers’ rights and collective trade union rights. Many of its details are also still subject to further consultation and regulations, which may result in a further watering-down of its contents.

But, despite its limitations, it does contain some positive advances for workers’ rights and for trade unions as collective organisations. As of the beginning of this month (May 2026) the following elements of the Act are now in effect:

• The Strikes (Minimum Service Levels) Act 2023 has been repealed. (The Act gave employers the right to require workers to provide a “minimum service level” during strikes in certain industries.)

• The requirement that trade unions ballot their members every ten years on maintaining a political fund has been scrapped. (The Tories had introduced this requirement in 1984 in the belief that union members would vote against political funds.)

• Where unions run a political fund, new members are automatically opted into the fund (but can opt out), whereas previously the requirement was for new members to opt in.

• The levy that trade unions pay to the Certification Officer has been scrapped. This means that trade unions will no longer contribute to the costs of the state agency which "oversees" their organisation and activities.

• Any dismissal of an employee for taking part in a “protected” strike (i.e. one where the legal requirements, such as balloting, have been met) now counts as automatically unfair dismissal. Previously, employers were entitled to dismiss employees after the twelfth week of a strike.

• Ballots for strikes in the public sector no longer have a requirement that at least 40% of those balloted must vote in favour of industrial action – a simple majority now suffices. Trade unions now need to give employers at least ten days notice of a strike or other industrial action (previously: at least 14 days). The “mandate” for a strike which is provided by a successful ballot now runs for a year (previously: six months, i.e. no need for a further ballot after six months).

• The contents of the notices which unions are required to send an employer before running a ballot on industrial action, and before carrying out the industrial action, have been simplified. The legal requirement for picketing supervisors has been scrapped.

• Unions in the public sector are no longer required to reimburse employers for check-off (i.e. no longer pay public sector employers a fee to cover the administration costs of deducting union dues from workers’ pay and transferring the dues to the union). Public sector employers are also no longer required to publish the amount of paid facility time taken by union reps.

• (Taken together, the above changes repeal the bulk of the Trade Union Act 2016, along with the repeal of Strikes (Minimum Service Levels) Act 2023.)

• The maximum award payable (“protective award”) if an employer fails to engage in consultation about collective redundancies has been doubled from 90 days’ pay to 180 days’ pay.

• Statutory Sick Pay is payable from the first day of absence due to sickness (whereas, previously, SSP was payable only from the fourth working day of absence due to sickness). The Lower Earnings Limit (i.e. how much you had to earn before being eligible for SSP) has been scrapped.

• Paternity leave and ordinary unpaid parental leave are now day-one rights for all employees, (whereas, previously, there was a qualifying period of 26-weeks’ service). The prohibition on taking paternity leave after a period of shared parental leave has been scrapped. But the qualifying period (26 weeks service) for paternity leave pay remains unchanged.

• The Act introduces Bereaved Partners Paternity Leave (BPPL) of up to 52 weeks. The definition of a partner is very widely drawn, and there is no qualifying period of service to exercise this right. But the leave is unpaid. The entitlement also applies only during the child’s first year of life (or adoption).

• Employers are now required to keep records – for at least six years – which show whether the employer has complied with workers’ statutory entitlements to holiday and holiday pay. (Generally not an issue for workers who work Monday to Friday, nine to five. But quite often an issue for workers who work irregular hours at variable rates of pay.)

• The definition of whistleblowing now includes disclosures relating to sexual harassment. (Arguably, disclosures about sexual harassment could already be deemed to count as whistleblowing. The Act removes the need for any argument.)

• A Fair Work Agency has been created (combining the powers of the Gangmasters and Labour Abuse Authority, the Employment Agency Standards Inspectorate, the National Minimum Wage enforcement team, and the Office of the Director of Labour Market Enforcement). The catch is that although the Agency has now been created, there is no timeline for when its enforcement powers will come into force. Also, the Agency’s workforce amounts to just 150 staff.

• A union seeking recognition through the statutory process still needs to demonstrate that at least 10% of workforce are already members before a ballot on recognition is held. But once the new Code of Practice applies, due to come into effect in October, it will suffice to demonstrate that “the required percentage” (i.e. required by the Code of Practice) has been met. This will be no greater than 10%, but no less than 2%.

• A union seeking statutory recognition no longer needs to demonstrate that a majority of the workforce is likely to vote in favour of union recognition in a ballot before such a ballot is held. All that needs to be demonstrated is that “the required percentage” of the workforce are already members.

• In any ballot on union recognition held after 6th April, union recognition must be granted where a majority of those voting vote in favour of union recognition. (Previously, at least 40% of the workforce had to vote in favour of recognition.)

• When an employer recognises another union after a union has applied for recognition through the statutory process (i.e. during what is called “the restricted period”), that recognition will no longer apply and will not prevent the union applying for recognition from securing recognition. (Previously, a union could not secure recognition through the statutory process if the employer recognised another union.)
• The draft Code of Practice also includes various other measures – which may well be watered down during consultation – to facilitate union access to a workplace when seeking to achieve recognition, e.g. fines of up to £500,000 for repeated refusal to allow union representatives into the workplace, and a requirement to switch off CCTV when and where union representatives organise workplace meetings to build support for union recognition.

Other elements of the Act will continue to be rolled out in late 2026 and early (or late) 2027. These include:

• Scrapping the requirement for at least a 50% turnout in a ballot on industrial action.

• Introducing electronic voting in industrial action ballots and union-internal elections.

• Employers to be liable for third-party harassment of their employees (unless they have taken all reasonable steps to prevent this).

• Extending time limits for lodging Employment Tribunal claims;

• Obligation on employers to inform employees of their right to join a union.

• Union equality reps to have paid time off to carry out their role.

• Protection against suffering a detriment for taking industrial action. (At the moment, legal protection applies only to dismissal, not to a detriment short of dismissal.)

• New measures for public outsourcing which, it is claimed, would prevent outsourced workers being employed on worse terms and conditions.

• Protection against unfair dismissal (in the sense of: being able to lodge an Employment Tribunal claim) to apply after six months of employment. (Currently: two years).

• Abolition of the “cap” on compensatory awards by Employment Tribunals for unfair dismissal.

• In theory, ending “fire and rehire” – but this may look very different by the end of the consultation on this.

• More rights for workers in “precarious employment”, but what those rights will be likewise depends on the outcome of the consultation.