Statutory guidance

Explanatory memorandum to the code of practice on industrial action ballots and notice to employers 2026

Published 9 January 2026

Applies to England, Scotland and Wales

1. Introduction

1.1 This explanatory memorandum has been prepared by The Department for Business and Trade and is laid before Parliament by Command of His Majesty.

2. Declaration

2.1 Kate Dearden MP, Parliamentary Under-Secretary of State for Employment Rights and Consumer Protection at the Department for Business and Trade confirms that this explanatory memorandum meets the required standard.

2.2 James Silcox, Deputy Director for Trade Union and Collective Rights, at the Department for Business and Trade confirms that this explanatory memorandum meets the required standard.

3. Contact

3.1 The Trade Union Policy team at the Department for Business and Trade can be contacted by email at the following address with any queries regarding the code of practice: tradeunionpolicy@businessandtrade.gov.uk.

Part one: Explanation, and context, of the code of practice

4. Overview of the code of practice

What does the code of practice do?

4.1 The Secretary of State proposes to issue a revised Code of Practice on Industrial Action Ballots and Notice to Employers (“the code”) to reflect the relevant legal changes made by the Employment Rights Act 2025, including the repeal of the great majority of the Trade Union Act 2016. The Secretary of State may issue a revised code of practice under section 205 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).

4.2 The code was last updated in 2017, when it replaced the code issued in 2005, and sets out relevant existing laws applying to industrial action ballots and notice to employers.

Where does the legislation extend to, and apply?

4.3 The extent of this code of practice (that is, the jurisdiction(s) where the code of practice has effect) is Great Britain.

4.4 The territorial application of this code of practice (that is, where the code of practice produces a practical effect) is Great Britain.

5. Policy context

What is being done and why?

5.1 The code provides practical advice to trade unions and employers to promote good practice in the conduct of trade union industrial action ballots and the giving of related notices to employers. 

5.2 The Employment Rights Act 2025 makes a number of changes to the requirements that unions must adhere to when conducting industrial action ballots in order for industrial action to proceed lawfully, and the updated code reflects these changes:

• Under Section 226 of the 1992 Act (requirement of ballot before action by a trade union), unions will no longer need to meet a 40% support threshold in an important public services industrial action ballot.  

• Under Section 226 of the 1992 Act, unions are required to meet the 50% turnout threshold in industrial action ballots. Section 68 of the Employment Rights Act 2025 repeals this 50% turnout threshold; however Section 68 is not yet in force but will come into force on a day appointed by the Secretary of State, via commencement order.

• Under Section 226A of the 1992 Act (information required in industrial action ballot notices), unions will no longer be required to provide to employers:
  • the number of workers in each of the categories of workers being balloted
  • the number of workers concerned at each workplace
  • an explanation of how these figures were arrived at – which has been removed as the union will no longer be required to provide an explanation regarding the total number of workers

• Unions will still be required to provide employers with the categories of workers concerned, their workplaces, and the total number of workers to be balloted.

• Under Section 229 of the 1992 Act (voting paper), unions will no longer have to include on the voting paper:
  • summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates
  • where a question was included about taking part in industrial action short of a strike, specification of the type of industrial action (either in the question itself or elsewhere on the voting paper)
  • an indication of the period or periods within which the industrial action or each type of industrial action is expected to take place

• The voting paper will continue to contain clear questions asking whether members are prepared to take part in strike action and/or industrial action short of strike.

• Under Section 231 of the 1992 Act (information as to result of ballot), unions will no longer be required to provide the following information to all persons entitled to vote in the ballot:
  • the number of individuals who were entitled to vote in the ballot (this will only apply once Section 68 of the 2025 Act is commenced by the Secretary of State via a statutory instrument)
  • whether a 50% threshold of those entitled to vote in the ballot was met (this will only apply once Section 68 of the 2025 Act is commenced by the Secretary of State via a statutory instrument)
  • the number of otherwise invalid voting papers returned (this will only apply once Section 68 of the 2025 Act is commenced by the Secretary of State via a statutory instrument)
  • (where the vote has taken place in an important public services sector), whether a 40% threshold of those voting in favour of industrial action was met

• Unions will still be required to notify members and employers of the number of votes cast (including any spoilt voting papers), and the numbers voting in favour and against.

• Under Section 234 of the 1992 Act (period after which industrial action ballot ceases to be effective), a union’s mandate for industrial action will expire 12 months (rather than 6 months) after the date of the ballot.

• Under Section 234A of the 1992 Act (information required in industrial action notices):
  • unions will no longer be required to provide to an employer the number of affected workers in each category listed
  • unions must give 10 days’ notice (rather than 14) to an employer where they intend to take industrial action

6. Legislative and legal context

How has the law changed?

6.1 Under section 203 of 1992 Act, the Secretary of State may issue a code of practice containing practical guidance, as they think fit, for the purpose of promoting, what appear to him to be desirable practices in relation to the conduct of trade unions of ballots and elections.

6.2 The code provides practical advice to trade unions and employers to promote good practice in the conduct of trade union industrial action ballots and related notices to employers. The Employment Rights Act 2025 makes a number of changes to the requirements that unions must adhere to when conducting industrial action ballots, and giving related notices to employers, in order for industrial action to proceed lawfully, and these changes merit an updated code.

6.3 In accordance with the procedure provided under section 205 of the 1992 Act such a revised code shall be laid, in draft, before each House of Parliament for 40 days.

6.4 The 40 days begins on the day the draft is laid before parliament. If no resolution is passed by either of the two Houses, the Secretary of State shall issue the code in the form of the draft.

6.5 The code will be brought into effect, by order, on a date to be appointed by the Secretary of State and in accordance with section 205(4) of the 1992 Act.

6.6 Under section 207 of the 1992 Act, a failure to observe any provision of the code does not make a person liable to proceedings. Any provision of the code is admissible in evidence in proceedings where relevant to any issues arising before a court, an employment tribunal or the Central Arbitration Committee.

6.7 This code therefore supersedes the March 2017 Code of Practice on Industrial Action Ballots and Notice to Employers.

Why was this approach taken to change the law?

6.8 This is the only possible approach to make the necessary changes.

7. Consultation

Summary of consultation outcome and methodology

7.1 Where changes to a code of practice reflect primary legislation, consultation is not required. Trade unions and businesses have been engaged throughout the passage of the Employment Rights Bill, to which the changes in this code are directly linked.

8. Applicable guidance

8.1. The Code of Practice on Industrial Action Ballots and Notice to Employers is itself guidance.

8.2. Should the parliamentary process be successfully completed, the Secretary of State proposes to publish the code on GOV.UK.

8.3. In addition, the government will use appropriate communication channels and press avenues to publicise the changes.

Part two: Impact and the Better Regulation Framework

9. Impact assessment

9.1 A full impact assessment has not been prepared for this code of practice because the changes to the code of practice are directly related to the primary legislation in the Employment Rights Act 2025 – which has been subject to its own detailed impact assessment.

Impact on businesses, charities and voluntary bodies

9.1 There is no impact on unions as the code itself does not create obligations on unions.

9.2 There is no impact on business, charities or voluntary bodies because the code does not create obligations on business, charities or voluntary bodies.

9.3 There is no, or no significant, impact on small or micro businesses because the revisions to the code are consequential on amendments to the 1992 Act (made by the 2025 Act).

9.4 There is no, or no significant, impact on the public sector because the code does not create obligations on the public sector.

10. Monitoring and review

What is the approach to monitoring and reviewing this legislation?

10.1 As this code of practice is only made to reflect new legal requirements made by the Employment Rights Act 2025, no review clause is required.

Part three: Statements and matters of particular interest to parliament

11. Matters of special interest to parliament

11.1 None

12. European Convention on Human Rights

12.1 The code of practice is subject to the negative resolution procedure and does not amend primary legislation, therefore no statement is required.

13. The relevant European Union Acts

13.1 This code of practice is not made under the European Union (Withdrawal) Act 2018, the European Union (Future Relationship) Act 2020 or the Retained EU Law (Revocation and Reform) Act 2023 (“relevant European Union Acts”).