The Employment Rights Act 2025 (ERA 2025) introduces significant changes to trade union law. The government has recently published its proposals regarding the prohibition of detrimental treatment related to industrial action, and the introduction of electronic and workplace balloting for industrial action.
Protection Against Detriment for Taking Industrial Action
The ERA 2025 introduced Section 236A into the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), providing protection from detriments for workers enacted for the sole or main purpose of penalising, preventing or deterring them from taking industrial action.
The government has now published the draft Protection Against Detriment (Industrial Action) Regulations 2026, which implement these protections. This follows the government’s consultation, which ran from 27 February to 23 April 2026, and the subsequent response published on 23 June 2026. The consultation sought feedback as to whether regulations should prohibit all forms of detriment or contain an exhaustive list of specified prohibited detriments. The government confirmed its intention to adopt a comprehensive prohibition, reflecting feedback from the consultation process.
What do the regulations say?
The regulations take a broad approach, prohibiting all forms of detriment related to protected industrial action, rather than limiting the prohibition to a specific list of detriments. They confirm that the common law rules which allow an employer to deduct pay from a worker for having taken part in protected industrial action remain unchanged, meaning that this will not amount to a detriment.
Additionally, the regulations amend Schedule A2 TULR(C)A to include detriment on grounds of industrial action.This schedule lists the specific employment tribunal claims where tribunals can adjust compensation (up or down by up to 25%) if a party unreasonably fails to follow a statutory code of practice.
The draft regulations were laid before Parliament on 24 June 2026 and once approved, are scheduled to come into force on 30 October 2026. This commencement date is later than other employment law reforms expected in October 2026, such as the extension of tribunal time limits, which are set to begin on 1 October 2026.
Employers faced with industrial action will need to exercise caution on how they respond to ensure that any steps are not considered to be a detriment.
Draft Code of Practice on Electronic and Workplace Balloting and Draft Permissible Means of Voting Order
Statutory trade union ballots are currently required to be conducted by post, while ballots concerning trade union recognition and de-recognition can be held either by post or in the workplace.
On 19 November 2025, the government published its consultation on the draft code of practice on electronic and workplace balloting for statutory union ballots. The consultation outlined three additional proposed methods for conducting ballots beyond postal voting: (i) electronic balloting, (ii) hybrid balloting, and (iii) workplace balloting.
On 22 June 2026, the Department for Business and Trade published its response to the consultation, laid a revised draft Code of Practice on electronic and workplace balloting for statutory trade union ballots (the “Code of Practice”) and the draft Trade Unions (Permissible Means of Voting) and Employment Rights (Unfair Dismissal) (Amendment) Order 2026 (the “Order”) before parliament.
What is changing?
The Order will amend the TULR(C)A to allow for the following methods in addition to the existing postal voting method:
- Electronic voting: voting materials are distributed, votes are cast, and votes are returned entirely through electronic means.
- Hybrid voting: this means that voters receive their voting materials by post and can choose to return their votes either by post or electronically.
- Workplace voting: this allows voters to cast their ballots in person by placing their voting paper in a ballot box located at or near their workplace; this option will only be available for industrial action ballots and will require the employer’s agreement.
Electronic and hybrid voting will be available for industrial action ballots, political fund/resolution ballots, union merger ballots, and union elections. Postal voting must remain available as an option and Unions may use any combination of these methods for a single ballot with different members assigned different methods.
The choice of voting method will rest with the trade union, as the “responsible person.”
It is anticipated that these changes will be rolled out in three phases. Phase 2 (targeted for 2027) will extend electronic and hybrid voting to statutory recognition and derecognition ballots. Phase 3 will involve a review of implementation and political enhancements via a new Senior Oversight Board.
Workplace ballots will only be permitted with the employer’s consent. Employers will be required to consider any request by a trade union for a workplace ballot for industrial action with “an open mind” and if rejecting the request must clearly explain the reasons for doing so.
Electronic ballots must use personal email addresses and personal mobile telephone numbers – not those provided to or controlled by the employer. This means that employer-issued email addresses and work mobile numbers cannot be used for distributing voting materials. Employers whose workforce relies primarily on employer-provided digital communications should note this restriction. In addition, employers should also ensure that routine IT monitoring systems do not inadvertently interfere with the secrecy of electronic ballots.
The Code of Practice provides guidance for the use of the new electronic and workplace ballots but does not apply to ballots conducted by the Central Arbitration Committee.
The Code of Practice:
- Specifies who the “responsible person” is, explains their role and what factors and criteria they must apply when determining which permitted voting method is to be used;
- Sets out the electronic and workplace voting requirements; and
- Reporting obligations and complaint procedures.
Next Steps
The Order and draft Code of Practice will be debated in both Houses of Parliament. Once approved, it is expected that the new reforms will come into force from August 2026.
What should employers do?
Employers should carefully review their policies, guidance, and decision-making processes to ensure that any actions taken in response to protected industrial action cannot be construed as penalising, preventing, or discouraging participation. It is important that managers receive training to distinguish between lawful operational responses and prohibited retaliatory conduct. Employers should also maintain thorough records documenting legitimate business reasons for any decisions affecting employees who are involved in, or may become involved in, industrial action.
Additionally, employers should be prepared for electronic, hybrid, and workplace balloting by reviewing and updating procedures and employee communications. This will include considering how requests for workplace balloting will be assessed and responded to, developing template voluntary access agreements, and reviewing digital infrastructure policies to understand how they interact with the prohibition on using employer-controlled email addresses and telephone numbers for electronic balloting.
Contact our Employment team for more information or assistance in navigating the new reforms.
Thank you to Hannah Featonby-Lyons for her help in preparing this post