The rules around trade union balloting are about to change for UK businesses as part of the Government’s Plan Make Work Pay and Employment Rights Act roadmap.
From 25 August, digital balloting will let trade unions run statutory strike ballots by secure email – and businesses don’t need a recognised union on site in order for it to apply to their staff.
Official guidance on electronic and workplace balloting is laid out in the Department for Business, Innovation, Science and Trade’s Electronic and Workplace Balloting Code of Practice, published last month. But with implementation dates looming, businesses need to understand what the law will change, and, crucially, how it could impact their workforce.
Speaking to Employment Hero, Specialist Employment Solicitor, Elissa Thursfield, lays out some of the key issues businesses should have on their radar.
Avoid Common Missteps
According to Elissa, the most common misstep businesses make when establishing contact with trade unions has less to do with regulation and more to do with how they interact:
“The most common issue is starting the relationship with the Union off on the wrong foot and it becoming a negative one from the start,” she says.
“It’s important to see it as a relationship, and many workforces are able to work with unions in a positive and productive way for the benefit of the business and the workforce.”
That’s not to say mistakes aren’t often made. In Elissa’s experience, the most common legal misstep she encounters is when businesses try to sidestep interacting with unions at all.
“Where a union is recognised or is seeking recognition, making offers directly to the workforce which would have the effect of taking their terms outside collective bargaining can amount to unlawful inducement and as the awards are ‘per worker’ they can soon mount up.”
Understanding Union Recognition and Ballot Terminology, According to an Employment Lawyer
For businesses that have never had to think about any of this before, Elissa recommends becoming more well-versed in the terminology in the first place.
“If a business with no union experience is suddenly facing a ballot, it can feel like a baptism of fire, but it is rarely a new relationship. Far more often it is one that has existed quietly for a long time and has only just surfaced.”
The rule change is just one of many Employment Rights Act-related measures that some business leaders are struggling to get their heads around. Employment Hero’s proprietary data from March, drawn from more than 120,000 employees across around 4,500 businesses, found that only 28% of those surveyed said they understood the specific requirements of Employment Rights Act legislation, and more than one in four (26%) said they had little to no knowledge of the reforms at all.
Key Dates Beyond 25 August for UK Businesses
With that in mind, it’s important for businesses to remember that there are more crucial dates beyond 25 August that businesses should be prepared for.
As Elissa points out, “25th August isn’t necessarily a day to panic over but what it will mean is the permitted methods of voting are changing. Electronic voting, hybrid and workplace voting will all be permissible and the statutory Code of Practice comes into force. The real date to be mindful of and to keep in mind is 30 October when unions will have a right of access to businesses with 21 or more employees and you will have to tell workers they can join a union.
“In terms of preparation ensure you have accurate workforce and site data, a written position on facilities and time off and ensure you have legal advice lined up in case you need it.”
A Say Over On-Site Voting, but Not the Post
According to the Electronic and Workplace Balloting Code of Practice, employers’ consent is mandatory before workplace balloting for industrial action can go ahead, and that consent has to be set out in an access agreement in advance.
An employer who consents can’t unreasonably prevent staff from voting or monitor the qualifying location. If they refuse, the union simply falls back on post or the new electronic option, neither of which needs the employer’s sign-off at all.
When it comes to voluntary access agreements, Elissa says that although they’re voluntary by nature, and refusal comes with no penalty “the Code says that you should consider it with an open mind and give your reasons if you are refusing, so a flat refusal by email with no reasons could be held against you if the process is ever scrutinised”.
She adds: “If you do sign it, legal advice is essential, but it must be as a minimum, written, signed, dated and cover location, operating hours, permitted voting times, scrutineer access, your own emergency access, an undertaking not to unreasonably prevent eligible members from voting, an undertaking not to monitor the location and what happens if someone breaches it and keep the scope to that ballot only.”
In a situation where that agreement is breached, Elissa says:
“Refusing permission does not stop the ballot, the union can simply run it by post or electronically, so what you are in essence deciding is not whether the vote takes place, but whether you host it. You do not pay for the ballot itself, the Code is clear that these costs sit with the union.
“However, in the agreement it must specify what happens if one of the parties breaks its terms, including who must cover the costs that result. If the clause puts the cost on the business and you are the party that has breached, you pay the union directly.
“In practice this could mean a ballot is rerun, the costs could include fresh voting papers, the scrutineer’s fees, administration and delay costs. Breaches would rarely be deliberate, it would be highly unusual and risky for a business to intentionally sabotage a ballot, and it is likely to be unintentional and a genuine mistake.
Her suggestions for employers include:
- Agreeing a financial cap before signing the agreement as the Code does not set one
- training managers on the rules
- Ensuring as far as possible the agreement reflects what you can actually put in place on site when a ballot is taking place.
What Happens Once a Ballot Succeeds
Once a ballot succeeds, Elissa says the practical clock businesses need to watch has already changed:
“The period for notice has been reduced from 14 to 10 days, and the union has to tell you the result ‘as soon as reasonably practicable’. You can ask for the scrutineer’s report and you should use the notice window for contingency planning, checking the notice is valid and trying to keep talks going.
“Remember the mandate runs for 12 months rather than six which is a long time to simply hope a situation will expire or ‘get better on its own’. Take advice, try to understand how you have come to the situation where you are facing a ballot and continue to work on the relationship and communication with the union.”
A business that has never had a union conversation cannot stop its staff being balloted by post or by email once the law changes on 25 August. What it can still decide, in writing and in advance, is whether a union is allowed to hold that ballot on the business’s premises.
Key terminology for businesses
Unrecognised Union
“An ‘unrecognised’ union is where you have union membership but no agreement between your business and the union for them to negotiate on behalf of the members; there is no bargaining relationship. Union reps might attend meetings (e.g disciplinary meetings) with employees; recognition is not needed for this to take place.”
Recognised Union
“A recognised union is one that you have accepted, or the Central Arbitration Committee (CAC) has declared, the union is entitled to bargain collectively for a defined group of your workers, usually over pay, hours and holidays. Recognition triggers a number of additional statutory duties around disclosing information for bargaining, consulting on redundancies, TUPE, paid time off for union reps and appointing safety representatives.
Voluntary Recognition
“Voluntary recognition is where the recognition has been done directly between the union and your business without involving the CAC, the terms and how it works has been set between the union and your business, giving the business some leverage over scope.”
Ballots
“Ballots are essentially votes, this is where members might be voting for industrial action (striking and action short of striking such as overtime bans, work to rule and refusing duties), voting on internal union elections, political fund resolutions, amalgamations and transfers of engagement. Usually however when an employer is talking about ‘ballots’ in the context of their business it is to do with the vote for industrial action, or a strike.
“Recognition ballots are different and they are run by the CAC if not going the voluntary recognition route.
“An unrecognised union can still ballot your workforce and call a strike, the right rests on having members, not being recognised and they could lawfully ballot your staff and call for industrial action without ever having sat across from you and discussed it.”
