Draft Code of Practice on Access and Unfair Practices During the Recognition and Derecognition Process
(1 day, 9 hours ago)
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The Committee divided: - Ayes: 10 / Noes: 3 - Question accordingly agreed to.
The Minister for the Future of Work (Kate Dearden)
I beg to move,
That the Committee has considered the draft Code of Practice: Access and Unfair Practices during the Recognition and Derecognition Process.
It is a pleasure to serve under your chairship, Mr Dowd. The code of practice was laid before the House in draft on 6 July. I will explain to the Committee why we are bringing the code for consideration.
In our plan to make work pay, we made a commitment to simplify the trade union recognition process. The Employment Rights Act 2025 updates the legal framework on statutory trade union recognition, so that workers have a meaningful right to organise through trade unions. That includes having removed, last April, the requirement for a union to demonstrate at the application stage that a majority for union recognition is likely, and having removed the requirement for a union to have at least 40% of the workforce in the appropriate bargaining unit in support of union recognition.
The 2025 Act also makes changes to provide better access arrangements for unions and it aims to deal more effectively with unfair practices during the recognition and derecognition processes. The Government are therefore updating the 2005 version of this code to ensure that all parties, including employers, workers and unions, understand how the legislative changes on access and unfair practices affect them.
We consulted on the revised code between 4 February and 1 April. The consultation sought views on the clarity of changes made to reflect the updated legal framework, structural amendments to reflect the legislative changes made under the 2025 Act, and other changes made to the code, including updating the guidance within it so that it accurately reflects modern working practices and language.
A number of revisions were made to the existing 2005 code following the consultation. Previously, the code applied only to the recognition or derecognition ballot phase. Now, the draft code reflects the changes made by the 2025 Act to access and unfair practices and it applies from the point where the Central Arbitration Committee accepts an application for recognition or derecognition. The code also reflects a clear timetable for negotiations on access: 20 working days from the point that the CAC accepts a trade union recognition application. If no agreement is reached, the CAC will have 10 working days to determine a reasonable access agreement.
The code has been revised to reflect the fact that the 2025 Act allows five working days after the close of the recognition ballot for complaints to be submitted to the CAC where an unfair practice is alleged. Where such a practice is alleged, the Act makes it easier to determine the complaints by only requiring the CAC to consider whether an unfair practice has occurred, without considering the effect that it may have had. The updated code also increases the suggested access meeting frequency and minimum length of meetings to once every five working days and 45 minutes, respectively, during the access period.
The changes will provide more opportunities for meaningful engagement between the union seeking recognition and the workers within the bargaining unit. That will allow union representatives to answer any questions that the workers may have, before the balloted workforce decides whether to agree to statutory union recognition.
Employers will of course have similar opportunities for engagement with their workers throughout the duration of period. In addition, we have sought to reassure employers, small and medium-sized enterprises in particular, for example by clarifying that the statutory recognition process does not apply to employers that have fewer than 21 workers and that nothing in the revised code will require employers to breach general data protection requirements.
The draft code also provides guidance on what constitutes a good access agreement. It establishes a structured framework covering key areas, such as who may be granted access, how and where access should take place—including digital options—and arrangements relating to timing, frequency, privacy and communication. Finally, the Government have taken the opportunity to bring the code up to date with changes in digital communications. The code now provides significantly more detailed guidance in this area, including guidance on digital access.
The draft code in Committee reflects the updated legal framework for statutory trade union recognition. Together with the 2025 Act, the changes strengthen the collective voice in the workplace, enhance worker representation and help to foster a new partnership of co-operation between trade unions and employers. I therefore commend the code of practice to the Committee.
Peter Fortune (Bromley and Biggin Hill) (Con)
It is a pleasure to serve under your chairmanship, Mr Dowd. The Conservatives opposed the Employment Rights Act at every stage of its legislative journey and remain steadfastly opposed to that Act, elements of which this code serves to implement.
The Employment Rights Act 2025 burdens employers with 330 pages of red tape: the single largest increase in employment regulation in a generation. As a direct result, we have seen reduced hiring, job cuts and huge costs to businesses. Even the Government’s own assessment of the Act admits that it will cost business billions. We are not opposed to the Employment Rights Act because we want to see workers stripped of their rights. We are opposed because of the damage it will do to businesses up and down the country.
The code of practice is one piece of a much larger picture but an important one. Before turning to that, I will touch on the consultation that the Minister mentioned. Over 920 responses were received to the Government’s consultation, with over 80% of those coming from employers and their representative organisations. On the proposals to increase the frequency of access meetings from once every 10 working days to once every five, 98% of the respondents disagreed. Some 97% of respondents disagreed with the proposal to increase the minimum meeting duration from 30 minutes to 45 minutes. When asked if the code adequately reflects digital communication in the workplace, 94% said no. On the question of whether the code adequately explains the role of the CAC, 96% said no. When asked if section D of the code provides sufficient guidance on access arrangements, 97% said no. Finally, some 96% said that the code’s unfair practices guidance was insufficient.
The consultation on the code of practice is damning. On virtually every substantive question put to the consultation respondents, the overwhelming majority of them expressed concern or disagreement, or called for a significant revision. The Minister has said that the Government listened and made amendments. I will be fair and acknowledge that some clarifications have been made, particularly on digital access. That is welcome, but on the issues that matter most to small and medium-sized businesses, the Government have noted the near-unanimous concerns of the consultation responses and chosen to disregard those concerns and force the code through against that advice.
On the duration and frequency of access meetings, I would appreciate if the Minister would outline why the overwhelming view of the consultation respondents has been ignored. Will the Minister also outline if any assessment has been made of the extra costs that employers will incur in facilitating the increased frequency of access meetings? The consultation response makes clear that the majority of respondents—57%—were from relatively small organisations of between 10 and 49 staff. Those are not large corporations with dedicated human resources and legal teams. For many businesses the code will put serious demands on time and limited resources.
On unfair practice complaints, the code makes significant shifts. The CAC will now be able to uphold unfair practice complaints without the need to show that the practice actually affected the outcome of the ballot. We recognise that the old test may have been difficult to satisfy in the time allowed, and that did lead to some genuine complaints falling, but does the Minister not think that removing the need to prove an impact on the result of the ballot risks opening the door to vexatious claims to disrupt the process? Will the Minister outline if any safeguards are in place to prevent that?
Another significant issue is that it is still unclear to many employers what constitutes unfair practice. In the consultation, employers consistently raised their concerns about the lack of clear examples and case studies of what constitutes an unfair practice and about the uncertainty that lack creates. The Government’s response stated that it was not appropriate to include examples in the code because it is the CAC’s role to make judgments on a case-by-case basis. Surely some basic examples could be provided to employers. Will the Minister outline now what an unfair practice is?
The Conservative party will continue to make the case for balanced employment rights that protect workers without unduly punishing the businesses that employ them. The code of practice fails to do that. It creates even more uncertainty for businesses and makes employing people even harder than the Employment Rights Act already made it. I look forward to hearing the Minister’s responses to my questions, but I am afraid that we cannot support this code of practice.
Kate Dearden
I welcome the shadow Minister and thank him for his speech and questions. The Government are committed to simplifying and improving the recognition process so that workers have a meaningful right to organise through their trade unions. I am not going to spend this time going back and forth over ideology and principles, why the Employment Rights Act is the right thing to do to drive up the quality of work across every area of this country so that people have the rights that they should expect in the workplace, and that we are updating employment rights legislation so that it is fit for the 21st century. We have spent a lot of time doing that, so I will bring my remarks back to the code that we are discussing today.
The revised code supports part of our wider ambition. It supports the Employment Rights Act to deliver better access arrangements for unions and deals effectively with unfair practices during the recognition and derecognition process. As I said in my opening remarks, we listened carefully to views that were expressed during the consultation earlier this year, and I am happy to respond to the particular questions that the shadow Minister raised today. The Government carefully considered the consultation responses and recognised the concerns that were raised about operational impact. However, we believe that workers should have a meaningful opportunity to hear from union representatives and ask questions before making a decision about recognition. That is why we have retained the proposed frequency and duration of meetings alongside guidance intended to minimise disruption and support those practical arrangements, and amended the code to try to aid clarity and support practical use as far as possible.
We think it is right that we provide a level playing field. Employers have access to the workforce throughout the recognition process. Granting the union access to the workplace from the point where the CAC accepts the recognition claim enables the union to also have access to the workplace from the start of the recognition process, at least once the terms of the access are agreed or determined. We think that that is a fair approach. The costs and benefits in the recognition process and the changes that the shadow Minister referenced in his speech were laid out in the impact assessment; the Government expect the cost to be very low, estimating the annual net cost to business at £0.3 million. The code is statutory guidance; it does not impose further costs on employers beyond what we discussed at length during the passage of the Employment Rights Act.
Turning to the shadow Minister’s questions around unfair practices, the legal definition as to what constitutes an unfair practice has not changed, as he referenced, in the Employment Rights Act:
“Unfair practices are actions by an employer, union, or worker intended to influence the outcome of a recognition ballot. These include bribery, coercion, threats, or actively interfering in union management to sway worker decisions.”
We have clarified in the code some issues to consider around some actions during the recognition process. As he referenced, amending the definition of an unfair practice would require separate legislation, and our priority has been to implement the reforms to the recognition process as soon as possible and on the October timeline, as we promised throughout our road map since the introduction of this legislation.
We want to give time for the reforms to bed in and, should it be necessary in the future, we will bring forward further proposals to amend the definition of an unfair practice in addition to our planned additional unfair practice in relation to e-balloting in recognition and derecognition ballots. This code is a key part of our approach of providing increased worker voices in the workplace, improving pay, conditions and productivity, which enables us to protect workers from the unfair practices that we are discussing today, and improving employer-employee relations in the kind of country and workplaces that we are fighting for and want to build. It makes sure that recognition is fair in terms of the access period. It needed to be updated since that 2005 legislation in line with the ambitions that we have for legislation and the Employment Rights Act.
This is a key part of that agenda, and I believe that the code before colleagues on the Committee today will assist unions and employers in complying with the new statutory requirements on access and unfair practices during the recognition and derecognition process. That is why this code is necessary, and I hope that colleagues can support it today to enable that vision and for this to work practically in workplaces.
Question put.