Protections against detrimental treatment for industrial action

The Supreme Court recently established that human rights laws mean that UK law should, but does not currently, protect workers against detrimental treatment short of dismissal for taking part in industrial action. We discussed this important decision in detail here.

As one piece of good news for employers, and despite some calls from some trade unions for it to do so in response to its consultation on how to address this situation (which we wrote about here), the Government has confirmed that it will not be changing the long-established rules on workers not being entitled to be paid for time that they spend on strike.

Nonetheless, the Government has now confirmed that it will be banning all other detriments against employees for taking part in strike action from 30 October 2026.

On the one hand, the Government’s approach will at least have the benefit of relative simplicity for employers and align workers’ protections in this area with their protections from detriment for being a member of a trade union or taking part in its activities.

On the other hand, this approach will limit employers’ ability to prepare for industrial action. It also leaves open many questions. Will employers be permitted to offer incentives to workers to continue to work as normal during strikes, or will that amount to a detriment to the workers who strike and don’t receive the incentive? Will employers who change their training rosters so that a manager can be trained to cover for a worker who would otherwise be provided with training at a particular time, but who is likely to go on strike, mean that that worker has been subjected to a detriment because their training has been delayed?

Unfortunately, there is no clear answer to these questions and, despite calls from employers for the Government to provide guidance on them, no such guidance will be made available. Instead, the Government has said that employers should rely on their experience of applying the other protections noted above, even though these kinds of questions do not arise in those contexts. Employers will therefore need to exercise caution in how they respond to industrial action, even if it is now clear that actions such as those of Ryanair to withdraw discretionary benefits (as we wrote about here) will no longer be permitted.

Electronic and workplace industrial action ballots

Trade unions’ industrial action ballots must currently be conducted exclusively by post, which unions have called “archaic”. As part of its efforts to modernise industrial relations, the Government recently consulted on permitting other forms of balloting, as we discussed here. The other forms are fully digital electronic balloting, hybrid electronic balloting (in which materials are distributed by post and members are able to vote by post or electronically) and workplace balloting.

The Government has now confirmed that it will be permitting each of these forms of balloting for industrial action ballots, as well as continuing to allow unions to ballot exclusively by post.

Most importantly for employers, workplace ballots will only be permitted with the employer’s consent. Whilst employers will be required to consider any request by a trade union for a workplace ballot for industrial action “with an open mind” and to explain the reasons for any refusal, it is difficult to envisage many employers agreeing to provide facilities in order to ease industrial action being called.

These changes are expected to come into force in August 2026, with further reforms in respect of statutory recognition and derecognition ballots following at some point in 2027.

In terms of their practical impact, these reforms are likely to make it cheaper for trade unions to ballot their members and drive-up participation rates. On balance, the cost savings are unlikely to lead to more industrial action ballots, but instead to trade unions having slightly more resources available for other purposes, such as to dedicate to employing officials to capitalise on the new right of trade unions to access workplaces that are expected to come into effect from October 2026 (as we have written about here).

More significantly, and although it hasn’t confirmed the timing for this, the introduction of new forms of balloting means that the Government is likely to soon proceed with bringing into effect the abolition of turnout thresholds for industrial action ballots. This is likely to lead to trade unions abandoning their more targeted approach on who to ballot, potentially leading to more disruptive industrial action.