The government has published a consultation and draft Code of Practice on modernising trade union ballots, including introducing e-balloting. This article explains what employers need to know.

The changes to trade union ballot requirements will accompany the government’s wider pro-union reforms in the Employment Rights Bill, which we have summarised here.

The new draft Code and consultation explore how to introduce electronic balloting without an independent review or pilot scheme. The consultation is open for responses until 28 January 2026. In the implementation "roadmap" published in July, the government indicated that these changes would come into effect in April 2026. 

What’s the purpose of the Code?

At present, certain statutory trade union ballots can only be held by post. This includes ballots on internal trade union matters such as political funds/resolutions, union mergers and union elections, but also matters of concern to employers, such as industrial action. There are different rules for statutory recognition and derecognition ballots, which can be conducted using postal or workplace balloting. 

The government is looking to modernise this process and increase union participation. To that end, it plans to introduce three new voting methods for certain types of ballot:

  • Fully digital electronic balloting for industrial action, political funds/resolutions, union elections, and union mergers. The consultation paper notes that the government intends to deliver this change by the end of 2026; a longer timeframe than envisioned in the roadmap.
  • Hybrid electronic balloting with materials distributed by post and members able to vote by post or electronically. This would apply to ballots for industrial action, political funds/resolutions, union elections, union mergers, and also to statutory ballots about recognition, derecognition, and changes to the bargaining unit.
  • Workplace balloting for industrial action ballots only. This does not affect existing provisions for conducting statutory recognition/derecognition or bargaining unit ballots via workplace balloting. 

Postal balloting will still be possible, and will effectively be the default ballot method. The responsible person (either a union official or the CAC) must consider various factors and criteria before proceeding with any of the new ballot methods, including the security of the proposed method.

All ballot methods will continue to be run by an independent scrutineer. 

These changes will be implemented through a statutory instrument (a draft of which is appended to the consultation), but the practicalities will largely be governed by the Code. Employers will want to understand what their obligations are with respect to these modernised balloting processes.

What do employers have to worry about?

Electronic balloting

The draft Code imposes onerous requirements for ensuring that electronic balloting is fair and secure, which should give employers significant comfort about the integrity of these processes. Unions and independent scrutineers may be concerned by the detailed list of technical and logistical requirements for electronic balloting.
The only new duty on employers is to refrain from hindering workers who are eligible to vote from casting their ballot freely, fairly and in secret. For example, employers should not seek to determine whether workers using workplace devices or internet connections are voting in a ballot, and should not seek to identify union members participating in an electronic ballot if they do so in the workplace. 

The trade union movement has campaigned for decades for electronic balloting for industrial action. While it will likely help unions to secure mandates for strikes, increasing turnout in industrial action ballots is set to become less important for unions as a result of the planned removal of the 50% turnout threshold for industrial action ballots, as part of the Employment Rights Bill.  

Workplace balloting

The draft Code introduces the possibility of workplace balloting for industrial action. This cannot be done without the employer’s consent, although the employer is required to consider any proposal for a workplace ballot for industrial action “with an open mind” and to explain the reasons for any refusal. In practice, employers may wish to avoid workplace ballots, to avoid further stoking tensions and to avoid any suggestion that they have exerted improper influence over the ballot process. 

The union’s position on its preferred method of ballot is likely to depend on what it believes will ensure the strongest ballot mandate in favour of industrial action, which in many cases is likely to be electronic balloting.
Where a workplace ballot is agreed, the employer, union and independent scrutineer must agree a voluntary access agreement. It appears that this is separate from more general access agreements, which are also currently subject to consultation. The voluntary access agreement for the ballot must include the following items:

  • Access to the workplace by the scrutineer (if applicable);
  • Operating hours and duration of the ballot;
  • Emergency arrangements for access to the voting room;
  • Voting times for staff and location of the ballot;
  • Agreement from employer not to unreasonably withhold staff from voting, with what is “unreasonable” to be agreed by the union and employer; and
  • Agreement from employer not to monitor the balloting location, to engage in good faith, and not to withdraw consent unreasonably.

The voluntary access agreement must also set out contingency provisions which will apply if an employer withdraws consent during the ballot process. The contingency agreements must set out who pays for the independent scrutineer to return, what happens to the remainder of the ballot, whether the ballot is continued via another suitable method, whether the ballot duration is extended, and what happens with votes already cast. 

What happens next?

The consultation on the draft Code is limited in scope and mainly seeks to ensure that the Code is sufficiently clear and detailed, rather than inviting any changes to the main provisions. The consultation also sets out the proposed statutory instrument, but comment is not invited on this.

We’ll continue to keep you updated on the government’s trade-union related reforms.

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