Employment Rights Bill – October 2025 update for charities

The repeal of the Strikes (Minimum Service Levels) Act 2023 will take effect on the date that the Employment Rights Bill (ERB) receives Royal Assent.

The Strikes Act allowed for minimum service levels when strikes occurred in "relevant services" in the fields of:

• health;
• transport;
• education;
• fire and rescue;
• border control; and
• nuclear decommissioning and radioactive waste management services.

Where a union called a strike in a service to which minimum service regulations applied, the employer could, having first consulted the union, give the union a "work notice", identifying the workers that are required to work and the work they are required to do to ensure the minimum service level is met during the strike.

Although this may have been presented as a significant change, no employers used the Strikes Act and as such, its repeal is unlikely to have any real impact on employers.

Enhanced protection against dismissal for industrial action

Currently, employees can claim automatic unfair dismissal if they are dismissed for taking protected industrial action and the dismissal takes place within the protected period (usually 12 weeks, starting with the date the employee first took part in industrial action). 
The legislation relating to the right not to be unfairly dismissed for taking part in lawful and official strike action will be simplified. Regulations will be required to bring these changes into effect.

Majority of the Trade Union Act 2016 repealed, including:

• The repeal of the current requirement for a 50% turnout threshold of all eligible members for ballots, and, for “important public services” (including transport and education), at least 40% of those entitled to vote must have voted in favour.
  
  Instead, under the Employment Rights Act, unions will need a simple majority of those eligible members who participate in the vote to vote for industrial action.
   
• Picketing supervision rules (picket supervisors will no longer be required).

Introduction of simplified industrial action rules

• Ballot and action notices simplified.
• Advance notice of industrial action reduced from 14 to 10 days.
• Mandates for industrial action extended from 6 to 12 months.
• Electronic balloting to be introduced (likely in 2026).

We are expecting government consultation (at any time now) on:

Trade union right of access

• This change will enable trade unions and employers to enter into access agreements for union officials to access an employer’s workforce to meet, represent or organise workers (regardless of whether they are members of a trade union) or to facilitate collective bargaining. The union would not be able to request access to organise industrial action.
• There is no requirement in the legislation for a union to have a certain level of membership within the organisation before requesting access, although Government guidance is expected on this point.
• Unions can request physical access to workplaces and to communicate with workers by other means (e.g. leaflets, meetings and digital channels).
• Unions can present a formal access request to an employer, who will have a set timeframe to respond. If the employer responds, the unions will have a negotiation period, to agree written terms of access.
• If no agreement is reached, or if the employer fails to respond within the set timeframe, unions can apply to the Central Arbitration Committee (CAC) to enforce access rights.
• The CAC will determine access using the “access principles” which are as follows:
  • Access should not unreasonably interfere with the employer’s business.
  • Employers should take reasonable steps to facilitate access by trade union officials.
  • Physical entry into a workplace should not be refused solely because other forms of communication are permitted (or vice versa).
  • Access should only be refused entirely where it is reasonable in all the circumstances to do so.

Restrictions

• Physical access may be limited in residential workplaces (e.g. care homes).
• Access agreements are presumed not to be legally enforceable, but complaints can be made to the CAC if the other party is alleged to have breached the agreement and there are enforcement mechanisms, including fines, that may be imposed in response to well-founded complaints.
  
  Regulations will be required to bring these provisions into effect.

Statutory trade union recognition: simplification

Where an employer does not recognise a trade union voluntarily, the union can apply to the Central Arbitration Committee (CAC) to obtain statutory recognition. Currently, complex rules apply to such applications. Collective bargaining resulting from a statutory trade union recognition procedure is limited to negotiations on pay, hours and holiday.

The reform will make it easier for unions to gain statutory recognition, which gives them the right to collectively bargain. 

Key Changes

• Membership threshold to trigger recognition procedures will be lowered from 10% to potentially as low as 2% of workers in the bargaining unit.
• Unions will only need a simple majority of votes cast in a ballot – the previous requirement of 40% support from the entire bargaining unit is removed.
• Employer interference (e.g. incentives or pressure during ballots) will be restricted from the moment the CAC accepts a union’s application.

• Employers will be required to inform workers of their right to join a trade union. The Government intends to consult on this proposal in autumn 2025, with a view to it coming into force in October 2026. Regulations will set out further details.
• Employers shall be required to provide facilities for trade union officials and learning representatives where they are permitted to take paid time off to carry out their duties.
• Trade union equality representatives shall be recognised in statute and given the right to take paid time off and facilities, where they are permitted to take paid time off, to carry out their duties.
• A worker will have the right to not be subjected to a detriment short of dismissal for taking part in industrial action. This is intended to remedy the issues uncovered in the case of Secretary of State for Business and Trade v Mercer [2024], which established that the existing legislation failed to provide protection against sanctions short of dismissal. The Government intends to consult on this proposal in winter 2025/early 2026.

The rules on blacklisting individuals who are trade union members or take part in trade union activities will be modernised. The Government intends to consult on these changes in Winter 2025 or early 2026.

Increased unionisation

We are already seeing a trend of unions seeking recognition with charity employers. Simplified recognition processes with lower thresholds may lead to increased union engagement, particularly for those charities with large workforces or those operating in social care, housing, or education sectors.

Dismissal risk

Enhanced protections against dismissal for taking part in lawful and official industrial action means that proposed dismissals will require careful legal handling.

Right of access

Unions will have a new right of access to the workplace (physical and by other means, e.g. digital). As such, we are likely to see union presence in charity workplaces.

Governance and reputation

Charities may face public scrutiny if industrial disputes arise, especially where services to vulnerable groups are affected.

We recommend that employers closely monitor forthcoming consultations and any statutory guidance and regulations, which will provide essential detail on the implementation of these changes.

In the meantime, with workplaces expected to become more unionised and industrial action easier to initiate, employers may want to review their approach to union relations now. This includes preparing for increased engagement, ensuring effective communication strategies and developing robust procedures to manage disputes constructively.