August’s changes to statutory balloting – what employers need to know

As part of the industrial relations reforms under the Employment Rights Act 2025, this month has seen the introduction of new electronic and workplace balloting methods which trade unions will be able to use in addition to the traditional postal method.

Following consultation, the new Code of Practice on Electronic and Workplace Balloting for Statutory Trade Union Ballots was published at the end of July, providing guidance on how trade unions can use these new methods to conduct certain statutory ballots.

The code of practice, and the legislation which expands on the current method of postal voting to permit electronic and workplace ballots, came into force on 25 August 2026. The existing thresholds, timescales and other requirements for union ballots for industrial action remain the same. The changes are intended to increase democratic participation and ensure that the decisions taken following ballots are more representative of members’ views.

The code covers electronic, hybrid and workplace voting methods used to conduct the following statutory ballots:

• industrial action ballots;
• union elections;
• ballots on political funds;
• ballots on amalgamations of unions; and
• ballots on transfers of engagements between trade unions.

It does not apply to ballots conducted by the Central Arbitration Committee (CAC).

The key ballot from an employer’s perspective will be one for industrial action. The legislation allows for a combination of permitted ballot methods to be used for a single ballot, and the code offers practical guidance on how multiple methods of voting can be assigned to ballot participants.

The code also covers the newly introduced role of the ‘responsible person’. This role is to be performed by a suitable person within the union, and will have responsibility for deciding the voting method, or combination of voting methods, which will be used for the ballot.

When determining the method(s) to be used, the responsible person must apply specified factors and criteria.

The factors they must consider include:

• whether an electronic voting platform would be accessible to those entitled to vote;
• the views expressed by those entitled to vote about the means of voting; and
• union rules or such other matters as appropriate.

If the voting is to be conducted by electronic voting, hybrid voting, or workplace voting, the responsible person must also take into account the level of security risk for the ballot or election and any risks associated with a particular permissible means of voting.

The responsible person must also apply the following criteria:

• as far as reasonably practicable, every person who is entitled to vote in the ballot or election has the opportunity to do so; and
• there is no reason why it would not be possible to satisfy the requirements of the relevant legislation which relate to the means of voting which are to be used in the ballot or election.

If these criteria are not satisfied, the responsible person’s determination will be invalid.

The code recommends, where possible and appropriate, that the responsible person includes in their determination provisions for an alternative method of voting to be invoked in the event that the primary voting method could no longer be used, for example due to technical issues. While the absence of ‘back up’ provisions will not invalidate the responsible person’s determination, if the original voting method is no longer adequate, the ballot would need to be restarted and a new determination made.

Where voters are given more than one voting method, the responsible person must determine the voting hierarchy and a ‘hierarchy statement’ must be issued, along with the voting papers confirming which vote will take precedence if members attempt to cast more than one.

The code also provides practical guidance on how the security of the votes can be achieved and maintained during ballots, including in relation to cyber security.

Guidance is also provided on the minimum elements that any voluntary agreement between the union and the employer to conduct workplace balloting should cover, including the place and time for the votes to be cast and the consequences of any breach of the agreement by the employer. While it is not mandatory to include the consequences of any breach, the code recommends that the agreement contains provision to this effect.

Finally, the code contains practical examples of what may amount to a small, accidental failure which is not likely to affect the result of the ballot, and can therefore be disregarded under the legislation.

Employers with unionised workforces should consider reviewing their employee engagement and industrial relations strategies, as good industrial relations will be key to mitigating the risk of increased ballots for industrial action.

The introduction of the new code is the first of a number of changes to take place in industrial relations legislation in the remainder of 2026, including the new right of access provisions which come into force in October. Over the next few weeks, the employment team will be publishing articles on the right of access, together with the other industrial relations changes to be introduced in October.