Bitesize ERA: Modernising trade union ballots under the ERA reforms

AMY: Hello and welcome to Bitesize ERA. I'm Amy Stokes.

CHARLIE: And I'm Charlie Rae.

AMY: And we're Employment Partners here at TLT. Today we're covering the Government's consultation response on electronic and workplace balloting, which landed very recently and has some important practical implications for anyone advising on or managing trade union relationships.

So, if your organisation has recognised trade unions, is navigating a recognition claim, or has a significant unionised workforce, then this is for you.

A quick framing point before we get into the detail. When we talk about balloting here, we mean formal statutory balloting. That's either for industrial action, such as strike action, or for statutory recognition or derecognition of a union. This is not about informal consultative ballots, such as ballots for a pay deal vote or something similar. Those sit outside this framework entirely.

The current position is that almost all statutory ballots must be conducted solely by post. What normally happens is that the union sends hard-copy ballot papers to home addresses, union members then complete them and return them by post. The Government considers this to be quite outdated and has said this reduces democratic participation and dampens the voice of working people. That's a direct quote.

The Government consulted on introducing three new methods of voting as part of its Make Work Pay agenda. There were 69 responses to the consultation, which closed a few months ago, and the Government has now published its response.

The three methods are:

• Electronic voting, where the entire process is carried out electronically from start to finish.
• A hybrid model, where materials are distributed by post and votes returned electronically, or vice versa.
• Workplace voting, which involves an in-person paper ballot. This could take place onsite or offsite under arrangements agreed voluntarily between the union and employer.

These methods can also be used in combination, providing greater flexibility.

There are three phases to the rollout.

Phase one, which will begin once Parliament approves the legislation, will make electronic and hybrid voting available for industrial action ballots, political funds, union elections and merger ballots.

Phase two, expected in 2027, will extend this to statutory recognition and derecognition ballots.

Phase three will focus on ongoing implementation and review.

The legislative vehicle for these changes is the draft Code of Practice and the Trade Unions (Permissible Means of Voting) Order 2026. Both are currently before Parliament and will come into force on the same day.

So pretty significant developments here, Charlie. One thing that really caught our eye when preparing for this episode was the potential employer veto, as it's been described, on workplace balloting. It's quite controversial, isn't it?

CHARLIE: Right, Amy. Yes, many respondents to the consultation felt that making workplace ballots contingent on voluntary employer consent effectively creates an employer veto.

The concern is that this could undermine the purpose of workplace balloting and make its use extremely unlikely in practice. Many respondents argued that this approach isn't aligned with the stated goal of increasing participation and is inconsistent with established industrial relations practices elsewhere.

On top of the consent issue, workplace balloting will also require the physical presence of an independent scrutineer, which adds cost and logistical complexity for unions.

For now, it appears that this veto, as it's being described, will remain. However, it's worth noting that it will be specifically reviewed as part of phase three implementation.

AMY: Yeah, it'll be interesting to see what happens with that. So, is refusing consent actually a safe position for employers?

CHARLIE: What we know is that employers who refuse consent to workplace ballots will need to explain the reasons for their refusal. In addition, they'll need to demonstrate that they considered the request with an open mind.

So, it's not a straightforward veto. Employers will need to do some work to justify why they're turning down the request.

That said, many people feel it's difficult to imagine employers rolling out the red carpet, so to speak, to facilitate industrial action by permitting workplace ballots where they don't have to.

The key question may be less about legality and more about the practical impact on the relationship between the employer and the union. Even if a refusal is lawful, is it tactically a good idea?

It's also worth remembering that whether this veto survives beyond phase three remains a live issue. It may not remain in place indefinitely.

Let's move on to what practitioners will need to consider in relation to the Code. Amy, what are your thoughts?

AMY: There are a few points worth highlighting, alongside the consent issue Charlie has already mentioned.

The first is the concept of the "responsible person". The Code confirms that the responsible person for the ballot is the trade union itself, which isn't particularly prescriptive. It provides very little detail about who within the union actually carries out that day-to-day role, giving unions flexibility in how they organise themselves internally.

A more significant development is the introduction of what the Code calls a ballot plan. This is a document that the responsible person must prepare before the ballot takes place. It sets out which voting method will be used and why that method has been selected.

The purpose of the ballot plan is to give the scrutineer a clear basis for understanding and overseeing the process. It also creates a documented record of the decision-making behind the voting method used.

That brings me on to scrutineers. We've mentioned them a few times already. For those less familiar with the term, a scrutineer is the independent party appointed to oversee and verify the ballot process.

They'll be central to all three new voting methods.

For electronic balloting specifically, the Government has confirmed that scrutineers must hold Cyber Essentials Plus certification. This is a government backed cyber security certification scheme, and it sets a meaningful standard given how important security is in electronic ballots.

However, it also brings added cost and complexity, particularly for multi-site employers where multiple scrutineers may be needed across different locations. That becomes a significant operational consideration and may slow uptake of electronic balloting in practice.

Another point worth flagging is the introduction of a standalone section in the Code on small accidental failures. This was added following consultation responses and essentially means that minor errors won't automatically invalidate a ballot.

That's important because it's intended as a safeguard for unions. Where there has otherwise been a democratic process, a minor technical error shouldn't automatically render the result invalid.

However, it also reduces opportunities for employers to challenge ballots on technical compliance grounds. Historically, those compliance issues have often formed the basis of legal challenges. We're starting to see some of those routes becoming narrower, and this is another example.

Finally, the Government has confirmed that electronic balloting requirements are deliberately more rigorous than those for postal balloting.

There are detailed technical requirements around identity verification, validation methods and contact procedures. While these measures are intended to address security concerns, respondents have suggested they may discourage electronic balloting in practice.

There is also a requirement to maintain an audit log for 12 months, which some have criticised as excessive.

None of these concerns have been fully resolved in the consultation response.

Alongside all of this, a senior oversight board is being established to oversee implementation of the new framework. Its membership will include businesses, trade unions, cyber security experts and scrutineers.

Its immediate role will be to monitor how the new methods bed in, but it has also been specifically tasked with reviewing the workplace ballot consent issue we discussed earlier. So, we'll have to see how that develops.

That was a whistle-stop tour of the key points in the consultation response. Charlie, what practical advice would you give to HR professionals at this stage?

CHARLIE: I think there are a few immediate priorities.

First, organisations should audit their existing relationships with scrutineers and union contacts, particularly around how ballots are currently run.

Second, review any existing collective agreements for ballot-related provisions.

You'll also want to map exposure across your business to identify which sites and employee populations could be affected by workplace balloting, so you're prepared if and when these changes come into effect.

It's probably worth designating a lead individual, perhaps within HR or legal, to monitor developments from the senior oversight board and phase three implementation, ensuring any developments are reflected in the organisation's approach to trade union relations.

It's also important to consider whether any planned organisational changes will overlap with ballot periods and how this could affect communication strategies.

One additional point we've identified is that multi-site employers are likely to face greater complexity. While the Code acknowledges multi-site balloting, it doesn't provide detailed guidance on how it should operate.

As a result, employers will need to think through the practical logistics for themselves, based on their own organisational structure.

Those are some of the key observations we've made.

Amy, we were also discussing what employers should have on their radar as these reforms continue to develop.

AMY: Yes, and that's probably the point I'd most encourage people not to lose sight of.

The balloting changes we've discussed today don't sit in isolation. They're part of a broader and rapidly evolving shift in trade union law, and the direction of travel is quite clear.

One key issue to watch is turnout thresholds. The introduction of these new balloting methods makes it increasingly likely that the Government will proceed with abolishing turnout thresholds in the near future.

That matters more than it might initially appear.

Currently, unions are often very strategic in how they ballot, targeting membership carefully to maximise turnout and meet the required threshold. If that requirement disappears, the incentive structure changes significantly.

As a result, we could see ballots being conducted more widely and more frequently, potentially leading to increased industrial action.

Connected to this is the new statutory right for trade unions to access workplaces, which is expected to come into force in October this year.

On its own, cheaper and easier electronic balloting may not dramatically increase the number of ballots. However, it could free up union resources that can then be redirected towards making use of those new access rights.

For employers operating in non-unionised or partially unionised environments, the combination of easier balloting and expanded workplace access represents a significant shift in the landscape.

It's something worth preparing for now rather than reacting to in 12 months' time.

So, lots to think about, lots to do, and lots more coming down the track. We'll continue covering developments as they emerge, so please keep tuning in for future updates.

Thank you very much for listening to Bitesize ERA. If you've got any questions or topics you'd like us to cover in future episodes, please do get in touch.