Trade Unions (Permissible Means of Voting) and Employment Rights (Unfair Dismissal) (Amendment) Order 2026
(Limited Text - Ministerial Extracts only)
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Lord Leong
That the draft Order laid before the House on 22 June be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business and Trade (Lord Leong) (Lab)
My Lords, I shall also speak to the accompanying Code of Practice on Electronic and Workplace Ballots for Statutory Trade Union Ballots. I also note the regret amendment tabled by the noble Lord, Lord Sharpe of Epsom, and I am glad of the opportunity to debate these important reforms. I will address the concerns raised by the noble Lord during my remarks.
This statutory instrument and the accompanying code of practice were laid before Parliament on 22 June 2026. This instrument has a clear and straightforward purpose. It modernises the statutory framework governing certain trade union ballots by allowing secure electronic voting and workplace ballots, while preserving the integrity, secrecy and independence that are fundamental to every statutory union ballot. Alongside these reforms, it makes a minor consequential amendment to Section 105 of the Employment Rights Act 1996 to ensure that the legislation remains consistent following the changes made by the Employment Rights Act 2025.
These are measured and practical reforms that update how statutory ballots may be conducted. They do not alter the legal framework governing industrial action or trade union democracy. The legislation governing statutory trade union ballots was developed in an era when postal voting presented the most practical way to conduct nationwide ballots. That is no longer the world in which we live. Today, people routinely undertake secure and sensitive transactions online. Yet, under the current law almost all statutory trade union ballots must still be conducted solely by post. That approach has not kept pace with the way people live or work; it can be slower, more expensive and more administratively burdensome than modern alternatives.
The Government made a clear commitment in their Make Work Pay manifesto to modernise statutory trade union ballots by allowing secure electronic voting and workplace ballots. This instrument delivers that commitment. It introduces three additional methods of voting for statutory trade union ballots, with the exception of statutory recognition and derecognition ballots, which will be addressed separately in 2027. First, it permits electronic voting, allowing eligible members to cast their votes securely online using personal authentication credentials. Electronic voting will be available only when a union member has provided a personal email address or telephone number to the union. This ensures that voting materials are issued through personal channels and remain outside employer-controlled or union-controlled workplace communication systems.
Secondly, the instrument permits hybrid voting. Under this model, members will receive their voting materials by post but may choose whether to return their vote electronically or by post. No one will be required to vote electronically if they prefer not to do so.
Thirdly, the instrument allows workplace voting for industrial action ballots. This option is available only when both the employer and trade union agree, and the ballot is conducted under the supervision of an independent scrutineer in a suitable secure workplace location. Workplace voting reflects the fact that industrial action ballots concern workplace issues, while maintaining the same statutory safeguards that apply to every other lawful ballot. None of these new methods is mandatory. Postal voting remains available. Trade unions will decide which lawful voting method best suits their membership. The purpose of these reforms is to extend choice, not remove it.
Alongside this instrument, the Government have laid a draft code of practice on electronic and workplace ballots. The code provides detailed practical guidance on how these new voting methods should operate in practice. It complements the legislation by setting clear expectations on accessibility, administration, security and transparency.
I now turn directly the amendment tabled by the noble Lord, Lord Sharpe. The amendment raises concerns about ballot integrity, cyber security, verification, auditability, resilience and the operation of workplace ballots. I want to be clear that this instrument does not make industrial action easier to authorise without safeguards. It does not weaken ballot integrity, or ignore cyber security, verification, auditability or resilience, and it does not ignore the position of employers on consent, operational disruption, cost, privacy or security. The use of independent scrutineers remains mandatory. Cyber security certification for electronic methods, secure voter authentication and ballot secrecy are mandatory. Far from weakening confidence, these reforms strengthen participation while preserving the safeguards that Parliament has long regarded as essential.
This instrument brings statutory trade union ballots into the 21st century. It modernises the methods of voting without changing the fundamental principles of trade union democracy. It preserves the integrity, independence and secrecy that are essential in every statutory ballot. These are balanced, proportionate and carefully designed reforms. They make participation more accessible while maintaining confidence in the legitimacy of statutory ballots. I therefore hope that noble Lords will support both the instrument and the accompanying code of practice. I beg to move.
Lord Sharpe of Epsom
At end to insert “but that this House regrets that the draft Order introduces electronic and workplace voting for statutory trade union ballots which risks making industrial action easier to authorise without sufficient safeguards for ballot integrity; that it does not provide adequate assurances for cyber-security, verification, auditability and resilience against interference for electronic voting; and that its workplace-voting provisions do not address employer consent, operational disruption, cost, privacy or security.”
Lord Sharpe of Epsom (Con)
My Lords, I am very grateful to the Minister for explaining and introducing the statutory instruments, to the first of which, as he has noted, I have tabled a regret amendment. The instruments risk making it easier, quicker and cheaper for unions to secure a mandate for strike action, while leaving too many questions unanswered about ballot integrity, cyber security, workplace disruption, employer costs and the ability of employers to challenge defects in the process.
I want to start by asking the Minister a number of very specific questions. First, paragraph 5.14 of the Explanatory Memorandum sets out the Government’s reasoning against piloting electronic balloting. Whether or not one accepts that reasoning, at least the Government have attempted to explain their approach. However, I do not see the equivalent justification for workplace balloting. Workplace balloting is an entirely new voting method for industrial action ballots. It creates practical questions for employers about space, security, access, staff release, supervision, privacy, CCTV, safeguarding, operational disruption and cost—I could go on. Yet, as I understand it, the impact assessment does not even cost workplace voting, nor has there been a pilot to test how it would operate in real workplaces, particularly not in complex environments such as hospitals, schools, care settings, secure sites, manufacturing sites, multisite operations and shift-based workplaces. Can the Minister therefore explain why the Government are introducing workplace voting without a pilot and costed evidence of the likely impact on employers?
The impact assessment also states that the policy is expected to deliver net benefits overall, primarily through reduced costs to trade unions from the use of electronic balloting compared with postal methods, with estimated annual savings of between £2 million and £8.2 million. Why is reducing the administrative costs of trade unions now a priority for the Government? What is a small business meant to think when it reads that its margins are being squeezed by higher taxes and employment costs, regulation and endless compliance burdens yet it never sees this level of ministerial enthusiasm for reducing its costs? However, when it comes to trade unions, the Government appear willing to redesign statutory balloting rules to save them money and make industrial action easier to organise. That says a great deal about the priorities behind this order.
Secondly, the instrument designates the trade union itself as the responsible person for determining which voting method or methods are used for its own statutory ballots. The union has an obvious interest in the outcome of the ballot. Can the Minister therefore explain why the trade union rather than the independent scrutineer has been designated as the responsible person for determining the means of voting, and how they intend to avoid a conflict between the union’s interest in securing a mandate and its judgment on the practicality, accessibility, security and integrity of the voting method that has been selected?
Thirdly, who is responsible for enforcing the required cyber security standard? What happens if a system is compromised during a ballot and what information will employers be given if they are expected to assess whether a ballot mandate is valid? Paragraph 38 of the code of practice says only that the union “may want”—I stress, “may want”—
“to appoint the independent scrutineer as a first step”,
so that the scrutineer can advise on the balloting plan. That is not a hard-edged safeguard. It still leaves the initial strategic decision on whether to use electronic, hybrid or workplace voting with the union itself.
Paragraphs 39 to 41 are similarly weak on cyber security. They acknowledge that some ballots may be more sensitive, including where there is a risk of attempted interference, hacking or even hostile state activity. Yet the code says only that the union and the scrutineer “may want”—that phrase again—to seek advice from the National Cyber Security Centre. If the Government are serious about the integrity of electronic strike ballots, why is that advice optional rather than mandatory in sensitive ballots, in particular those affecting critical public services? Public sector employers have particular reason to be concerned. In hospitals, care settings, schools and other essential public services, the concern is whether staff can be released safely, whether patient, pupil or service user care is affected and whether safeguarding arrangements are maintained.
These instruments form part of the Government’s wider Employment Rights Act package. That package reduces the notice employers receive before industrial action, extends the life of mandates, removes previous restrictions and strengthens union access to the workplace, as well, of course, as adding billions in administrative costs. Taken together, these measures reduce employer flexibility and tilt the balance of power further away from employers, who are trying to maintain services, productivity and investment.
It is also striking that paragraph 9.5 of the Explanatory Memorandum says that these measures
“may improve participation and the representativeness of ballot outcomes”.
But this is in contrast with what Jonathan Reynolds said last year, which was that aligning the removal of the 50% turnout threshold with the introduction of e-balloting would
“ensure that industrial action mandates will have demonstrably broad support”.—[Official Report, Commons, 4/3/25; col. 13WS.]
The removal of the 50% ballot threshold was set to happen in April this year, but it has not yet happened. I hope that is because even the Treasury has begun to understand the consequences that repeated militant strike action in critical public services would have for taxpayers, who would be forced to fork out millions for pay rises for the public sector—indeed, they already have. Can the Minister tell us whether the Government still intend to remove the 50% strike threshold, and if so, on what date will Section 68 be commenced? If Ministers cannot give a date, is that because they are concerned that removing the threshold, alongside electronic voting, would increase the likelihood of industrial action in schools and other public services?
The Government seem to have discovered a very selective enthusiasm for technology. Technology to help unions secure strike mandates is called “modernising industrial relations”, yet, according to recent reports, the new Prime Minister is considering scrapping Palantir’s work with the NHS, despite the fact that better data and technology are exactly what the NHS needs to improve efficiency, productivity and patient care, and in spite of the fact that it is widely reported to be working. At a time when critical public services, especially the NHS, need reform, investment and innovation, the Government should be backing technology that helps patients and taxpayers, not prioritising cartel behaviour from the BMA, which has warned that it will behave more militantly in the future. I beg to move.
Lord Frost (Non-Afl)
My Lords, I support the regret amendment tabled by the noble Lord, Lord Sharpe. The strength of this country over the past 20 or 30 years has been in its very flexible labour market. Those of us, like me, who have, from time to time, managed staff in European labour markets know what the difference is: endless consultation, inflexibility, disputes and reluctance to employ people. The significant role for social partners and trade unions is a big part of that. Now we are bringing that home to this country and we already see the effects in the employment statistics.
The SIs that we are debating are just the latest phase in that. They obviously build on what was done in the Employment Rights Act: the extra rights for trade unions, which have been much debated and I will not go into now, but include the extra right to workplace access, easier recognition, rights for union officials on employer time and, of course, lower thresholds for ballots of all kinds, including strikes—which brings us to today’s SIs.
As we heard from the Minister, the main thing that these SIs do is extend the types and arrangements of ballots that can be carried out before a strike. This is presented—indeed, the Minister did present it—as modernisation of the system. Whether deliberate or not, the effect is going to be to make it easier for politically motivated union officials to make strike action happen.
The trade union reforms of the 1980s were brought in for a reason, as were postal ballots. It was to stop intimidation and to make ballots secure as to both process and the reliability of the result. These SIs risk beginning to undo that process. Workplace ballots obviously make potential intimidation of workers easier. We know that electronic voting is insecure. We would not do it in our own general elections. The Government’s own impact assessment is doubtful about the ability to provide security about such ballots. To add to that, trade unions themselves are made the responsible persons for such ballots, rather than independent third parties.
I imagine the Minister will point to other organisations that have used such methods—the Conservative Party, the National Trust, financial services institutions, and so on—but I suggest gently that such organisations do not have the same record of questionable behaviour, bullying and threats that unions have done from time to time. We know that happened in the 1980s but it did not happen only then. There are credible reports of such threats during the Post Office dispute in 2022-23; the Birmingham bins dispute, where the High Court itself was involved; and many other such cases. This is the problem with bringing insecurity into strike ballots. We risk bringing back some of the forces that made problems for this country in the 1980s and which we have not seen much of in the past 20 or 30 years.
I finish with some questions for the Minister. Does this record not give him any pause for thought? He is a very successful businessman himself: does he not worry about some of these consequences? Does he not worry, since most unions are in the public sector nowadays, that these rules will come back to bite the Government at some point very soon? Why, as the noble Lord, Lord Sharpe, asked, have pilot arrangements been rejected? Finally, when we look at the unemployment figures over the past year or so, does the Minister not have any qualms about what has been done with the Employment Rights Act—the additional costs to labour in this country? Would it not be better for him and the Government to think again while they still can?
Lord Leong (Lab)
My Lords, I am very grateful for the support across the House, especially from the noble Lords, Lord Balfe and Lord Fox, for the Trade Unions (Permissible Means of Voting) and Employment Rights (Unfair Dismissal) (Amendment) Order 2026 and the Code of Practice on Electronic and Workplace Ballots for Statutory Trade Union Ballots. Today’s scrutiny and debate have been constructive and light-hearted, at some points. Noble Lords have raised interesting points on dispute resolution, workplace ballots and the next phases of delivery for the measure. They have also raised points on the 50% threshold, intimidation and dispute resolution, as I mentioned earlier. I will address these points briefly.
First, I will respond to the point raised by my noble friend Lady Jones of Whitchurch on dispute resolution. Industrial action should always be the last resort. It is costly for workers, employers and the wider public. That is why the Government are committed to a new era of partnership. We want employers, unions and government to work together, through co-operation, negotiation and meaningful engagement at workplace level. We intend to develop a new overarching industrial relations framework, working with stakeholders, such as employers and unions, to promote partnership, reduce conflict and support productivity and growth. That is a noble ambition.
I will now respond to the points raised by my noble friend Lady O’Grady. My noble friend and the noble Lord, Lord Sharpe, asked about the 50% threshold for industrial action ballots. To be clear, the order does not repeal that threshold, and the noble Lord, Lord Fox, also mentioned that. To commence Section 68 of the Employment Rights Act 2025, the Secretary of State must first lay a Statement before Parliament. This must set out how he has had regard to the impact of electronic and other non-postal voting methods on participation in industrial action ballots. The instrument delivers on our commitment to permit electronic and workplace balloting. The review of their impact on participation will then follow and inform the repeal of the 50% threshold.
My noble friend also asked about the use of workplace email addresses. Following implementation of the instrument, we plan to establish a senior oversight board, comprised of key stakeholders, to help assess how the new voting methods are working in practice and consider future enhancements, including the secure use of workplace email addresses. As it stands, we are not doing that now.
My noble friend also raised recognition and derecognition ballots. We are committed to extending electronic and hybrid voting to the Central Arbitration Committee-run recognition and derecognition ballots as part of phase 2 of delivery. We will deliver this as soon as practicable in the second half of 2027.
I will now turn to the various points raised by the noble Lord, Lord Sharpe. On workplace balloting, employers will not be forced to allow workplace voting. It can take place only where an employer agrees. Employers remain free to consider operational disruption, privacy, security and practical arrangements before giving that agreement. The union will continue to bear the cost of running the ballot itself, with no cost to the employer.
On the role of the responsible person, in practice this will be the trade union. That is because the union is best placed to understand its membership and communication methods when deciding the appropriate voting method or methods. It would not make sense to outsource this role to a third party, who will not have the information to make this determination.
I want to assure the noble Lord, Lord Sharpe, that this decision is not unfettered. The instrument sets out clear factors and criteria that must be applied before a voting method can be chosen. On cyber security, responsibility rests with the independent scrutineer. Scrutineers conducting electronic ballots must hold a valid Cyber Essentials Plus certificate for the networks and systems they use, and I have personal knowledge of how laborious it is to apply for the Cyber Essentials Plus certificate. It is something that one has to go through, and it is quite rigorous in its application. They are also responsible for operating the platform securely and ensuring that the legislative requirements are met. There will be extensive audit logging and monitoring throughout the ballot, and any security incident must be recorded. If the legislative requirements are not met, the union will not be able to rely on that ballot, and it must be rerun. I hope that provides reassurance to the noble Lord.
I want to be clear about what the order does: it steps away from the current bureaucratic and expensive requirements that all statutory union ballots must be held by post. It will bring the voting system for trade union ballots into the 21st century, and it delivers this change in a manner that ensures secure, secret and safe balloting. It will not, as we have heard today, weaken the safeguards relating to industrial action ballots. It will not weaken ballot integrity, and it will not leave questions of cyber security, verification, auditability, employer consent and costs unanswered.
Lastly, as I have already made clear, workplace voting can take place only where the employers agree. Employers remain able to consider operational disruptions, privacy, security and practical arrangements before giving that agreement. This is an overdue reform.
Before I conclude, I will touch on a couple of points raised by noble Lords. The noble Lord, Lord Sharpe, asked about organising a pilot. It is not necessary to pilot workplace balloting for statutory union ballots. The instrument is informed by detailed engagement with key stakeholders, including businesses, cyber security experts, unions and independent scrutineers, as well as public consultation on the draft code of practice on electronic and workplace ballots.
The noble Lord also asked about cost, and I did mention that there is no cost to the employer. The Government expect that individual unions will determine which voting arrangements best meet the operational needs and will bear the cost themselves.
The noble Lord also touched on the doctors’ strike. The Government will continue to engage closely with the BMA, ensuring that the NHS remains a place where doctors can develop rewarding and long-term careers. The Government are committed to building on the good progress that has already been made, cutting waiting lists and continuing to improve conditions for the staff who make their NHS work, in partnership with them.
The noble Lord, Lord Frost, made a point about pressure and intimidation. The Government fully recognise the importance of protecting members from any undue influence. That is why the statutory safeguards governing ballot conduct remain in place, regardless of the voting method. The company code of practice provides guidance on maintaining ballot secrecy and integrity, and independent scrutiny remains an important safeguard throughout the process. This legislation sets out clear safeguards and technical standards, ensuring the integrity and confidence of the ballot process while making it meaningfully easier and more convenient for working people to take part in the decisions that affect them.
I conclude by wishing all noble Lords who will not be here tomorrow a fantastic, restful Summer Recess.
Lord Sharpe of Epsom (Con)
My Lords, I am enormously grateful to the Minister, who actually answered my questions. I hope that that is not a bad sign. Is that a bad sign? I think that we should be told.
That was a spirited and enjoyable debate, and I thank everybody who took part in it. I am particularly grateful to the noble Lord, Lord Fox, because he said that the Liberal Democrats believed in free association. I am delighted to hear that they believe in something; it is a first. The noble Lord also made parts of my arguments for me. I will not labour the point, but he referred to the consideration of various safeguards, as opposed to the enactment of them. That was precisely the point I was making and I am very grateful to the noble Lord for reiterating it.
I thank my noble friend Lord Balfe for his insights on the unions. I am particularly intrigued by the free legal advice, which I fear I may need fairly soon if I carry on like this. The noble Lord, Lord Frost, made some excellent points about historical context, and we should pay attention to him. The Minister did not say whether he had been given pause for thought, but perhaps we can discuss that outside the Chamber.
One thing that seemed to be said on the other side of the House about this side of the House is that in some way we are against the exercise of democratic rights and that we are interested in making life tough for people who are in unions. I assure the House that that is not the case; what we are pro is making jobs and, unfortunately, a lot of the activities that this Government have put through have made that very difficult. This point was made very clearly by the noble Baroness, Lady Jones, perhaps inadvertently. The fact is that the 44% of employees who are experiencing discontent are the lucky ones—they have jobs. Let us not forget the 14.8% of NEETs whom we heard about yesterday in the latest statistics.
Finally, I and the noble Baroness, Lady O’Grady, found common cause in two areas. She can probably think of only one, which was Section 68. I am very pleased that she agrees with me on that and am grateful to the Minister for his answer. I think he said we will hear more about this in the second half of 2027: if I am wrong, perhaps he could correct me. The other area the noble Baroness and I agreed on was how important democracy is—which is why it is such a shame the new Prime Minister has taken power after a bloodless coup.
It is very late. I do not see the point in having a vote. I beg leave to withdraw my amendment.