Trade union recognition: consultation on access, unfair practices and electronic ballots

Background

The Employment Rights Act 2025 makes a number of changes to the statutory framework for trade union recognition and derecognition. In particular, it strengthens union access rights, tightens the rules on unfair practices, and paves the way for electronic balloting.

This consultation, launched on 4 February 2026, seeks views on two related issues. First, a revised Code of Practice on access and unfair practices, intended to reflect the new legal framework and modern working practices. Second, proposed changes to the unfair practices regime to address risks associated with electronic ballots.

The consultation closes on 1 April 2026, with further guidance expected once the new provisions and revised Code come into force.

Revised Code on access and unfair practices

The revised Code reflects changes that will apply across the entire recognition and derecognition process, not just during the ballot phase.

Key changes include bringing forward the point at which both access rights and the prohibition on unfair practices apply. Under the new framework, these protections will start when the Central Arbitration Committee confirms that it has accepted a relevant application, rather than later in the process.

The revised Code also reflects new statutory timetables. Once an application is accepted, a union will have a short window to request access to the workforce, followed by a defined period for the parties to agree access arrangements. If agreement cannot be reached, the Central Arbitration Committee will determine the terms. This is intended to reduce delay and disputes at an early stage.

In relation to unfair practices, the revised Code reflects a tougher approach. Allegations will be able to be raised for longer after a ballot closes, and the Central Arbitration Committee will no longer need to assess whether an unfair practice affected the outcome, only whether it occurred.

Practical changes to access arrangements

Beyond reflecting legislative changes, the revised Code updates guidance to reflect modern working practices.

The consultation proposes increasing the minimum frequency of union access meetings during the access period, shortening the interval between meetings. It also suggests extending the minimum duration of those meetings. The consultation asks whether these proposed minimum standards strike the right balance between union access and business disruption.

The revised Code also places greater emphasis on digital communication including on the use of email, intranet pages and virtual meetings alongside physical meetings.

The consultation asks whether the revised Code gives sufficient clarity on the role of the Central Arbitration Committee and whether further guidance would be helpful, particularly around access agreements and examples of unfair practices.

Electronic balloting and unfair practices

The second part of the consultation addresses the introduction of electronic balloting for recognition and derecognition ballots.

While hybrid electronic balloting is considered broadly compatible with existing unfair practice rules, the government is concerned that pure electronic balloting could create new opportunities for interference, particularly where ballots are conducted using workplace email systems.

The consultation therefore explores whether the list of unfair practices should be expanded to cover conduct such as interfering with the delivery of electronic ballots, attempting to identify how individuals have voted, submitting votes on behalf of workers, or misleading workers about the secrecy of their vote.

Although these concerns arise most sharply in the context of pure electronic ballots, the proposed prohibitions would apply regardless of the ballot method used.

Learning points for employers

Employers facing recognition or derecognition applications should expect earlier and more structured engagement with unions, alongside a lower tolerance for conduct that could be characterised as influencing outcomes.

The proposed changes also underline the importance of careful internal controls if electronic balloting is introduced, particularly around access to email systems, communications during ballots, and the role of managers.

The consultation closes on 1 April 2026, with further guidance expected ahead of implementation. Employers may wish to review recognition response plans and internal protocols now, particularly where union activity is anticipated or ongoing.