On 18 February, the first major measures of the Employment Rights Act (ERA) come into force. The ERA repeals the majority of the Trade Union Act 2016 and significantly relaxes the requirements of the process for organising industrial action. For industrial action ballots opening on or after 18 February, the ERA simplifies requirements on trade unions in respect of ballot and industrial action notices, removing many of the avenues for employers to challenge their validity and delay the action. The legitimacy of the ballot is extended from 6 months to 12 months before a further ballot will be required. The ERA also extends protection against dismissal for taking protected industrial action to the whole period of the action, rather than the ‘protected period’ of 12 weeks. The notice period for industrial action reduces from 14 to 10 days. The requirement for trade unions to appoint an official picket supervisor is also removed.

The requirement for a 50% turnout for a valid ballot remains in place for now but will be reviewed when electronic balloting is introduced later this year.

The result is that industrial action will be materially easier to organise and more difficult to challenge, and both unions and striking workers will enjoy more protection.

Employees who will be newly eligible for ‘Day 1’ paternity leave and unpaid parental leave from April can also now give notice to take the leave.

Protective award for failure to inform and consult – collective redundancies

This week is also potentially significant for employers undertaking collective redundancies. The protective award for failure to inform and consult is set to double on 6 April to 180 days’ pay per affected employee. Guidance suggests that this will apply to dismissals on or after that date, rather than proposals, although the detail of the transitional provisions is not yet known. Where an employer proposes to dismiss as redundant 100 or more employees, the minimum 45-day consultation period, if begun at the end of this week, will result in dismissals after the penalty increases. Employers in this situation should take extra care to ensure that their consultation processes are legally compliant.

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