The Employment Rights Act: Changes to industrial action

Aims of the Employment Rights Act

In the Department for Business and Trade’s published overview of the ERA, it explains that the ERA intends to create law which ‘modernises trade union legislation, giving trade unions greater freedom to organise, represent and negotiate on behalf of their workers’.

The publication continued, explaining the following changes to the law which it believes will enable these goals to be successfully met. Below, we set out both the immediate changes and those that will be implemented in February 2026.

Immediate changes

The first step towards achieving this was the immediate repeal of the Strikes (Minimum Service Levels) Act 2023.

Prior to its repeal, this statute allowed the Secretary of State to set ‘Minimum Service Levels’ in certain sectors, such as education, health and transport. This meant that a specified percentage of staff could be expected to work during industrial action. If they acted against this, workers and/or unions could risk losing legal protection.

As a consequence of the ERA, Minimum Service Levels can no longer be enforced. In practice, this means that workers can participate in lawful industrial action without being subject to a mandatory work notice, giving them greater freedom.

Changes in force from 18 February 2026

The next set of changes under the ERA are scheduled to take effect on 18 February 2026. These reforms introduce substantive updates affecting balloting, worker protections and the obligations of trade unions.

Of note, the ERA will remove key restrictions imposed by the Trade Union Act 2016. This particularly affects public services as the ERA will remove the 40% support threshold for industrial action ballots, lowering the barrier to instigate industrial action.

Alongside this, other confirmed changes include:

The ballot mandate expiration will increase to 12 months (from 6 months), giving unions more time to commence industrial action after a successful vote

Industrial action notices have been simplified, so unions no longer need to give employers as much detailed information about planned action

The notice period for industrial action will reduce to 10 days from 14 days

Employees are protected from unfair dismissal for the entire duration of lawful industrial action, and for a period afterwards, where the principal reason for dismissal is participation in such action

New union members will automatically be opted into contributing to the union’s political fund, unless they expressly opt out by providing an opt-out notice

Unions will only have to remind their members every 10 years of their right to opt-out of the political fund, rather than holding a ballot

Unions will no longer be required to appoint a picketing supervisor

Unions and employer’s associations will no longer have to disclose as much information to the Certification Officer

Removal of several powers previously held by the Certification Officer including the right to act of their own volition and impose financial penalties for certain breaches

The Appeal process will be changed meaning that decisions can only be challenged on their legal, rather than factual, basis.

What this means for employers

Employers of unionised workplaces are encouraged to familiarise themselves with the new rules surrounding industrial action as soon as possible. This will ensure that they are best placed to ensure that they have a full understanding of their obligations and can achieve full compliance with these new rules.

Employers in non-unionised workplaces are also encouraged to review these changes and prepare for the upcoming roll-out of further ERA provisions.

If you have any questions about how these changes to industrial action will affect your workplace, please do contact a member of our Employment team.