Industrial relations reforms under the Employment Rights Act 2025 and what they mean for higher education providers

The Act removed a number of restrictions on trade union balloting and picketing. In particular, it:

• Removed the 40% support threshold for industrial action in important public services (including education for under-17s)
• Reduced the required notice of industrial action from 14 to 10 days
• Removed picket supervisor requirements
• Extended the validity of an industrial action mandate from six to 12 months.

The 50% turnout threshold for industrial action ballots remains in place for now but will be reviewed once electronic balloting is introduced (the speculation being that the government will find it easier to justify the removal of a 50% turnout threshold if its assessment of e-balloting supports the view that it will substantially increase turnout, making the threshold less important - see below for more details).

Unions are no longer required to provide detailed workforce breakdowns in ballot notices or include industrial action information in annual returns.

The position on political fund contributions is also reversed. New members will be automatically opted in to contributing to a union’s political fund unless they opt out; express consent will no longer be required.

Public sector employers will no longer need to publish facility time data; ministers will no longer be able to cap facility time and unions will no longer be required to fund payroll deductions for union subscriptions.

The previous 12-week cap on protection against automatic unfair dismissal for employees taking industrial action has also been removed. This increases litigation risk where dismissal follows lawful industrial action and underlines the need for clear evidence of the reason for dismissal.

Taken together, these reforms reduce procedural barriers to industrial action and extend the lifespan of mandates. In a sector that has experienced sustained national disputes in recent years, this may affect the frequency, duration and timing of industrial action. The removal of the 12-week cap on protection against automatic unfair dismissal also increases litigation risk where dismissal follows participation in lawful industrial action. Institutions will therefore need to ensure that decision-making processes are clearly documented and that the reason for dismissal can be robustly evidenced.

The statutory trade union recognition process is simplified. Unions will no longer need to demonstrate majority support at the application stage. The 10% membership threshold remains for now, although the government now has the power to adjust it to between 2% and 10%, which we do expect it to implement in due course.

Recognition ballots will require a simple majority of votes cast, removing the previous requirement for support from at least 40% of the bargaining unit.

This is one area in which the higher education sector is less likely to be impacted than most, given the widespread recognition of key unions, including the UCU, Unison, Unite and the GMB. 

Subject to the government being required to assess the impact of electronic balloting on participation and report to Parliament, secure electronic balloting is expected to be introduced for trade union votes in August 2026.

Workers will gain protection from detrimental treatment for participating in industrial action, with the detail to be set out in regulations. The government is currently consulting on what is to be considered a detriment under the regulations. Its preferred approach is to encompass all detriments to widen protections as much as possible, with an alternative option being a prescribed list of detriments. The consultation will close 23 April 2026.

Employers will be under a new duty to inform workers of their right to join a trade union, with timing and format prescribed in secondary legislation.

Trade unions will have a right to negotiate workplace access agreements, including physical and digital communication with workers. Where agreement cannot be reached, the Central Arbitration Committee will have the power to set and enforce the terms. Importantly rights of physical and digital access are not limited to recognised trade unions. The existence of recognised unions is a factor counting against the CAC mandating access but not an absolute bar to it. It will be interesting to see if this leads to speculative access requests from organisations outside of the "traditional" higher education unions.

The right to reasonable paid facility time is strengthened by a presumption that requested time off is reasonable, placing the burden on the employer to show otherwise. Employers must also provide appropriate workplace facilities. Equality representatives will be entitled to paid time off and facilities. Given the need to incorporate these new rights into recognition agreements, this year may be an ideal time to revisit existing recognition agreements and consider whether they remain fit for modern purpose, particularly with many such agreements having existed for several decades without amendment.

Blacklisting protections will be extended. The prohibition on compiling, using or supplying blacklists will cover predictive technologies, including AI-based systems and will extend beyond employers and agencies to third parties.

Although no immediate action is required, higher education providers should review workforce data practices and any recruitment or workforce management technologies to ensure they could not be characterised as blacklisting activity.