Electronic and workplace balloting
Under the current legislation, industrial action ballots must be conducted by post. The Government regards this requirement as outdated and has proposed changes to modernise the statutory balloting regime.
Following consultation, the Government has published a draft Order amending the existing legislation to permit electronic and workplace balloting for industrial action ballots, alongside the existing option of postal balloting.
The union, as the responsible person, will decide which balloting method to use bearing in mind prescribed considerations and can choose a hybrid approach. In practice, these changes are likely to make ballots easier for unions to organise and increase participation.
The Order is accompanied by a draft Code of Practice on electronic and workplace balloting. The draft Code is intended to provide practical guidance for unions and scrutineers on use of the new balloting methods, including factors and criteria to consider when selecting the balloting option and the roles of the relevant parties.
Both the Order and the Code of Practice are expected to come into force in August 2026. As well as applying to industrial action ballots, the Order will permit electronic balloting (but not workplace balloting) for other statutory trade union ballots, including political fund/ resolution ballots, certain union election ballots and union merger ballots. The Government has indicated that electronic balloting for recognition and de-recognition ballots may follow in 2027.
Unionised employers should review the Code of Practice and brief managers on the forthcoming changes. The introduction of electronic balloting is likely to make industrial action quicker and easier to organise, so maintaining constructive industrial relations will be important.
Protection from detriment for taking industrial action
The Employment Rights Act 2025 also extends protection for workers who take part in protected industrial action, including strike action. In Secretary of State for Business and Trade v Mercer [2024], the Supreme Court held that the existing legislation did not protect workers from detriment short of dismissal where that detriment was imposed because they had taken part in strike action.
The ERA addresses that gap by prohibiting employers from subjecting workers to a detriment where the sole or principal purpose is to prevent or deter them from taking protected industrial action, or to penalise them for doing so.
A key issue has been the scope of “detriment” for these purposes. The Government considered whether to prohibit all detriments or provide a list of specific prohibited detriments.
Following consultation, the Government has published draft regulations which take the broader approach and prohibit all detriments against workers for taking protected industrial action. This will cover all forms of detriment short of dismissal, including less favourable treatment in relation to pay or incentives, denial of promotion or opportunities, and more subtle forms of disadvantage such as exclusion from meetings, social events or interesting work projects. However, the draft regulations confirm that a proportionate deduction of pay for the period during which the worker takes industrial action will not amount to a detriment for these purposes.
The draft regulations still require Parliamentary approval. If approved, they will come into force on 30 October 2026.
Together, these reforms are likely to make industrial action easier to organise and for workers to participate in. Unionised employers should prepare now by reviewing the new Code of Practice, briefing managers on the expanded protections, and ensuring that any decisions affecting workers who take protected industrial action are carefully considered, documented and are appropriate.
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