A significant shift in the way statutory trade union ballots are conducted is being planned. New secondary legislation under the Employment Rights Act 2025 (ERA) will introduce electronic workplace balloting.
This change, part of the broader reforms linked to the ERA, reflects voting practices used in both political parties and listed companies, and means that employers, both unionised and non-unionised, need to prepare for new obligations and the practical considerations that go with them.
Why electronic balloting, and why now?
Trade unions are currently required under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to hold postal ballots when they want to call for industrial action, including action short of a strike such as an overtime ban. If this required step is not taken, the trade union concerned may face legal action and possible damages.
Proposals on e-balloting are not new – the 2017 Knight Review, an independent report on e-balloting for industrial action, advised against immediate implementation due to security concerns. The review recommended piloting electronic voting in non-statutory contexts to ensure security, anonymity and protection against intimidation.
Now, with the ERA 2025 and the Make Work Pay initiative, the government has put e-balloting firmly back on the agenda, seeking to increase participation in, and accessibility of, voting. The aim is to ensure that the result of a ballot more accurately reflects the sentiment of the workforce.
What changes can we expect to see?
New balloting methods
In consultation documents and legal briefings, the government has set out a range of options for how e-ballots would take place:
1- Pure electronic (fully digital) balloting
This would mean members could receive, cast and submit votes entirely electronically. It is intended that this will apply in the first instance to industrial action ballots and then to statutory recognition/derecognition ballots by late 2026 (or possibly early 2027).
2- Hybrid e‑balloting
Under this option, members would receive a physical postal ballot but could then decide whether they would vote by post or electronically. This option would cover a wider range of ballot types, including statutory recognition and derecognition ballots.
3- Workplace balloting
This will be permitted alongside electronic and postal methods. It will be supported by safeguards that will be set out in the draft statutory Code of Practice.
This does not mean the end of postal balloting; it will still be available and for the majority of cases, will be the default option. Unions will be expected to carry out an assessment of factors such as security, accessibility and integrity before any decision is made on an alternative method for the ballot.
Safeguards and compliance
Regardless of which ballot method is adopted, the government is keen to stress:
- the secrecy of the ballot
- prevention of undue influence or interference
The government also intends to have independent scrutineers for all processes, regardless of format; this will include e-balloting.
What is a scrutineer?
Under Section 226B of TULRCA, when a trade union holds a ballot, it must appoint an independent scrutineer to oversee how the ballot is carried out. The trade union must be sure that the scrutineer will carry out the functions conferred on them competently and that their independence in relation to the union, or in relation to the ballot, cannot reasonably be called into question.
Independent lawyers and auditors qualify as scrutineers, as do bodies such as the Electoral Reform Ballot Services and the Industrial Society.
Implementation timeline
Although there is a degree of variance depending on which source is consulted, it is believed that rollout will take place in phases during 2026, and it is expected that full implementation will be with us by late 2026 or early 2027. The devil is in the detail, however, and recent consultations have solicited the input of stakeholder organisations and interested parties.
What does this mean for employers?
1- Increased ballot frequency and responsiveness
Since electronic voting makes balloting quicker and more accessible, it is believed by some legal commentators that unions could find it easier to launch ballots, primarily because the logistical hurdles of managing postal votes will be reduced.
It makes sense, therefore, that employers should prepare for:
- shorter lead times between disputes and ballots
- faster ballot turnaround
- greater participation levels
2- Updated notification and engagement processes
Reforms in the Employment Rights Act 2025 will have an effect on the notice periods for industrial action and employer communications.
- Notice of industrial action will fall from 14 to 10 days.
- Employers may increasingly receive ballot outcome communications via email rather than post.
3- Compliance and evidence requirements
In the new draft Code of Practice, there are reminders of the need for robust safeguards if new forms of balloting are adopted. Employers should expect that they will be facing obligations relating to:
- minimising interference risks (e.g., policies governing device security on employer premises)
- providing appropriate access for union communications
- ensuring procedural fairness during workplace balloting
It is believed that government legislation will be forthcoming regarding sanctions against “unfair practices” in electronic ballots. Employers are advised to take a look at their internal practices to make sure they are objectively neutral and do not present a risk of being interpreted as “unfair” by either side.
4- Greater transparency – but also greater scrutiny
Although there are clear audit trails around electronic systems that can potentially reduce disputes over ballot validity, they can also create new expectations in the areas of
- data protection
- cybersecurity
- accurate and up‑to‑date workforce information
If an employer records employee contact data, such as emails and online system access, it is important to keep these up to date and accurate in order to avoid inadvertently creating barriers to participation and possible legal action.
Action points – what to do now
1- Keep an eye on forthcoming secondary legislation and the final Code of Practice. These will put flesh on the bones of the Employment Rights Act 2025 and set out the detailed rules that will govern day-to-day aspects of the new system. Liaise often with your legal advisers who will be keeping up to date with developments and who can brief you on what you need to know.
2- Make sure your internal HR and industrial relations policies are up to date and compliant with what the law requires. This will likely include union engagement, communications channels and balloting processes and industrial relations policies. Again, making use of expert legal advisers will mean compliance issues can be identified and resolved.
3- Review email addresses and contact details you hold for employees to check that they are accurate and up to date.
4- It is anticipated that there will be new unfair practice rules introduced, so make sure that you train your frontline and senior managers to understand the boundaries they need to observe during electronic or hybrid ballots.
5- Because of the ease and speed with which electronic ballots can be held, you will need to be prepared for the way this will affect relations with trade unions, including the need for quicker response times.
