Trade union law: transition to Employment Rights Act 2025
Transitional and saving arrangements for the trade union measures of the Employment Rights Act 2025 coming into force on 18 February 2026: for employers, unions and workers.
Applies to England, Scotland and Wales
The regulations detailed in this guidance are not yet in force. They will come into force on 18 February 2026.
Purpose of this guidance
This guidance accompanies the Employment Rights Act 2025 (Commencement No.1 and Transitional and Saving Provisions) Regulations 2026 and in particular regulation 6 and Schedule 2 to those regulations.
It may help employers, unions and workers prepare for these provisions coming into force on 18 February 2026. However, only tribunals and courts can definitively interpret the legislation and you should seek legal advice if needed.
Why transitional and saving provisions are needed
Certain trade union-related measures in Part 4 of the Employment Rights Act 2025 are due to come into force on 18 February 2026.
Transitional and saving regulations will also come into force on the same date. These will relate to how the law will apply in the period around these specific trade union-related measures coming into force. They will address how to deal with certain cases that began under the Trade Union Act 2016 legal framework but are still in progress when relevant provisions of the Employment Rights Act 2025 come into force.
The regulations also contain details of ‘saving’ provisions, which have a similar effect: preserving the ‘old’ legislation for certain limited purposes despite the introduction of a new legislative regime.
Where this guidance refers to the ‘old’ law, that means the law as it stands before the relevant provisions of the Employment Rights Act 2025 come into force on 18 February 2026.
Political funds
Existing member status
Section 62 of the Employment Rights Act 2025 alters arrangements for new members joining a trade union, so that they are automatically opted in to contributing to the union’s political fund (if it has one), unless they expressly opt out by providing an opt-out notice.
Transitional arrangements (paragraph 2 of Schedule 2) provide that existing members who were not contributing to the political fund will remain opted out when section 62 comes into force on 18 February 2026, and do not need to take any action to retain their opt-out status. (Such opted-out members will be able to opt in by giving notice, if they wish, at any time.)
Illustrative examples:
A union member who joined a trade union that operated a political fund on 2 March 2018, and continues to do so, and was (under the Trade Union Act 2016 regime) automatically opted out of political fund contributions at the time of joining, will continue to not be considered a ‘contributor’ to the fund when section 62 comes into force on 18 February 2026 (unless, and until, they give a withdrawal notice in relation to the opt-out notice, which they are treated as having given, so indicating that they wish to be a contributor). This is the case whether the member consciously decided to opt out or was opted out by default.
A union member who joined a trade union that operated a political fund on 2 March 2018, and was (under the Trade Union Act 2016 regime) automatically opted out of political fund contributions, but subsequently expressed their desire to be considered a ‘contributor’ by giving an opt-in notice, will continue to be considered a ‘contributor’ when section 62 comes into force on 18 February 2026.
Withdrawal notices
Withdrawal notices are, under the old law, the mechanism used by union members to opt out of political fund contributions (by withdrawing an opt-in notice), but have a different definition under the Employment Rights Act 2025 (where such notices refer to the withdrawal of an earlier opt-out notice, indicating a wish to opt in).
Transitional arrangements (paragraph 3 of Schedule 2) set out how such withdrawal notices under the old law received by the union shortly after section 62 of the Employment Rights Act 2025 comes into force should be dealt with.
Transitional arrangements state that where a union receives a withdrawal notice under the old law within 4 weeks following the commencement of section 62 on 18 February 2026, it must be given effect under the previous provision (therefore opting the member out of political fund contributions).
Illustrative example:
Where a withdrawal notice under the old law is provided by a trade union member to their union and received on 17 March 2026 (within 4 weeks of section 62 of the Employment Rights Act 2025 coming into force on 18 February 2026), and indicates the member’s intention to opt out of making political fund contributions, it must be given effect under this previous definition of a withdrawal notice. The union will have one month to give effect to this withdrawal notice.
Opt-out reminder notices
Section 62 of the Employment Rights Act 2025 removes the requirement for unions to remind members of their right to opt out of contributing to a political fund, within 8 weeks of submitting their annual return to the Certification Officer.
A saving provision in paragraph 4 of Schedule 2 ensures that the Certification Officer is able to take action to remedy any failure by a union to issue that reminder notice where the 8-week period has expired before the date that section 62 comes into force on 18 February 2026. This ensures the Certification Officer can enforce pre-existing non-compliance under the law as it stood prior to the coming into force of section 62, if needed.
Illustrative examples:
A trade union that submits their annual return to the Certification Officer on 29 December 2025 has 8 weeks to notify members of their right to give a withdrawal notice if they wish to opt out of political fund contributions under the old law. However, as this 8-week period would finish on 22 February 2026 (after section 62 of the Employment Rights Act comes into force on 18 February 2026) the requirement to issue the reminder notice will fall away. The union would therefore no longer be required to issue this reminder to members if it had not already done so.
A trade union that submits their annual return to the Certification Officer on 23 December 2025 would have 8 weeks until 16 February 2026 to notify members of their right to give a withdrawal notice if they wish to opt out of political fund contributions. As this 8-week period expires before section 62 comes into force on 18 February 2026, the union is still required to issue the reminder notice to all members by 16 February 2026. If a union fails to do this, then due to the saving provision, the Certification Officer will be able to make an order for remedying this failure.
Political funds: 10-year ballot requirement
Section 61 of the Employment Rights Act 2025 removes the requirement for unions to ballot their members every 10 years on the maintenance of a political fund.
While no transitional provision is made here, unions may still find the following illustrative examples useful.
Illustrative examples:
The period of 10 years from the passing of a political resolution ends on 17 February 2026: as this is before section 61 of the Employment Rights Act 2025 comes into force on 18 February 2026, the union must hold a ballot on the maintenance of the political fund. That political resolution must have passed on, or before, 17 February 2026. No further ballots to maintain the political fund will be required after this by this union after that ballot is held.
The period of 10 years from the passing of a political resolution ends on 18 February 2026: as this in, on, or after, section 61 of the Employment Rights Act 2025 comes into force on 18 February 2026, the union does not need to hold a ballot on the maintenance of the political fund. The requirement to hold 10-year ballots has fallen away.
Check-off in the public sector
Section 63 of the Employment Rights Act 2025 ends the prohibition on relevant public sector employers from making (check-off) deductions from wages in respect of trade union subscriptions unless:
- the workers can pay those subscriptions by other means and
- arrangements have been made for the union to make reasonable payments to the employer that covers the costs of making of the deductions
A saving provision in paragraph 5 of Schedule 2 states that the coming into force of section 63 does not affect any right or obligation arising in connection with anything done, or any omission made, before the coming into force of section 63, or the enforcement of any such right or obligation, or the commencement or continuation of any legal proceedings in relation to any such right or obligation.
The Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2024 will also be automatically revoked on 18 February 2026. Deemed prohibitions in employment contracts and collective agreements, as referred to in the Regulations, will also end with their revocation.
Illustrative examples:
A relevant public sector employer is making deductions from wages in respect of trade union subscriptions on 17 February 2026. Arrangements must be in place for the relevant union to reimburse the employer for the cost of administering that check-off process.
A union had arranged to make a payment to a relevant public sector employer to cover the cost of the employer making check-off deductions during the period 9 May 2024 (the date the check-off regulations came into force) and 18 February 2026 (the date section 63 of the Employment Rights Act 2025 comes into force) but the union had not made that payment by 18 February 2026. The employer is able to recover the payment.
A relevant public sector employer is making deductions from wages in respect of trade union subscriptions on 18 February 2026. Unless some other agreement for reimbursement has been reached outside the statutory requirements, the union does not need to reimburse the employer for the cost of administering any check-off process agreed between the union and the employer.
Facility time
Section 66 of the Employment Rights Act 2025 repeals trade union facility time publication requirements for relevant public sector employers.
Paragraph 6 of Schedule 2 contains a saving provision and provides that a relevant public sector employer remains required to publish information in relation to a relevant period (as defined in the Trade Union (Facility Time Publication Requirements) Regulations 2017) which ends before 18 February 2026, the date section 66 comes into force).
Illustrative example:
A relevant public sector employer’s relevant period is 1 April to 31 March. For 2025 to 2026, the relevant period has not ended before 18 February 2026. The employer does not need to publish facility time information related to the 2025 to 2026 relevant period.
Industrial action ballot support threshold
Section 69 of the Employment Rights Act 2025 removes the requirement for a 40% support threshold to be met in industrial action ballots in certain important public services.
Transitional arrangements (paragraph 7 of Schedule 2) have the effect that the threshold will no longer be required to be met for ballots opening on, or after, the date that section 69 comes into force on 18 February 2026.
‘Opening’ means the first day when a voting paper is sent to any person entitled to vote in the ballot.
Illustrative examples:
A union sends a voting paper to its members on 17 February 2026 related to industrial action in an ‘important public services’ sector. 40% of those entitled to vote in the ballot most vote in favour of industrial action in order for lawful industrial action to take place. This is the case even if the ballot is open from 17 February to, for example, 4 March 2026, because the ballot was opened before 18 February 2026.
A union sends the first voting papers to its members in an ‘important public services’ sector on 18 February 2026. No support threshold will need to be met.
Notice of industrial action ballot
Section 70 of the Employment Rights Act 2025 reduces the amount of information that unions must include in the notice of an industrial action ballot that they send to an employer.
While no transitional provision is made here, unions and employers may still find the following illustrative examples useful of how the law will apply in the weeks either side of coming into force of section 70 on 18 February 2026.
Illustrative examples:
The opening day of the ballot is 17 February 2026. The union must provide the notice no later than 7 days before the opening of the ballot (by 10 February 2026). The union would need to include the full information requirements (under the old legislation) in their notice to the employer.
The opening day of the ballot is 20 February 2026. The union must provide the notice no later than 7 days before the opening of the ballot (by 13 February 2026) and would need to include the full information requirements in their notice to the employer.
The opening day of the ballot is 2 March 2026. The union could choose to give notice on 23 February 2026 and therefore provide the reduced information requirements, following section 70 of the Employment Rights Act 2025 coming into force. Alternatively, because 23 February 2026 is the latest date for compliance and the notice could be earlier, the union could choose to give notice on, for example, 17 February 2026 and include the full information requirements.
The opening day of the ballot is 25 February 2026. The union could (just) choose to give notice on 18 February 2026 (being the seventh day before the opening of the ballot), following section 70 of the Employment Rights Act coming into force, and provide the reduced information requirements. That is because section 70 commences at the beginning of 18 February 2026. Alternatively, the notice could be earlier, as in the final sentence of the example immediately above.
Information to be included on voting paper
Section 71 of the Employment Rights Act 2025 reduces the amount of information that unions must include on an industrial action ballot voting paper.
It is possible that voting papers are sent to members on different days straddling the date on which section 71 comes into force on 18 February 2026.
Transitional arrangements (paragraph 8 of Schedule 2) have the effect that the information requirements are reduced for ballots opening on or after the date that section 71 comes into force on 18 February 2026.
There is also a saving provision, to the effect that the reduced information requirements will not apply in relation to voting papers a sample of which was provided to the employer prior to 18 February 2026. This ensures that the sample and actual voting papers contain the same information.
Illustrative examples:
The opening date of the ballot is 17 February 2026. The old law applies (enhanced information on voting paper). The union would have needed to provide a sample voting paper to the employer by 14 February 2026. The old law also applied to the sample voting paper, so the sample and actual voting papers will contain the same information.
The opening date of the ballot is 23 February 2026. The Employment Rights Act 2025 (reduced information on voting paper) applies. The union would have needed to provide a sample voting paper by 20 February 2026. (The position would be different in the unlikely event that the union chose to provide the sample voting paper earlier than required and before 18 February 2026.)
The opening date of the ballot is 20 February 2026. This date is after section 71 comes into force. However, the sample voting paper would need to have been provided by 17 February 2026 which would have been under the old law. The saving provision for section 71 therefore provides that the old law applies to the (enhanced) information required for the voting paper, thus ensuring the sample voting paper and the actual voting paper contain the same information.
Sample voting paper to employer
The Employment Rights Act 2025 does not make any changes to the union’s obligation to provide the employer with a sample voting paper by the third day before the opening of the ballot. The sample voting paper must of course be consistent with the actual voting papers sent to trade union members.
While no transitional provision is made here, unions and employers may still find the following illustrative examples useful, given that there is interaction between the timing of the sample voting paper and actual voting paper (where information requirements are changing), which is considered in the previous section of this guidance.
Illustrative examples:
The opening day of the ballot is 23 February 2026. The union will need to provide a sample voting paper to the employer by 20 February 2026 (the third day before the ballot opens) at the latest. It could therefore provide the sample voting paper to reflect the information requirements of the new law. Alternatively, because 20 February 2026 is the latest date for compliance and the sample voting paper could be provided earlier, the union could choose to provide it earlier and reflect the information requirements of the old law.
The opening day of the ballot is 20 February 2026. The union will need to provide a sample voting paper by 17 February 2026 at the latest, and would therefore do so reflecting the information requirements of the old law.
Mandate period for industrial action
Section 72 of the Employment Rights Act 2025 increases the mandate period for industrial action, following a successful ballot, from 6 to 12 months.
Transitional arrangements (paragraph 9 of Schedule 2) have the effect that the 12-month mandate will only apply to ballots opened on or after the date that section 72 comes into force on 18 February 2026. Six-month mandates obtained under ballots opened before 18 February 2026 will not be automatically extended to 12 months – unions would need to re-ballot to secure a 12-month mandate.
Illustrative examples:
A union opens a ballot on 4 February 2026, with an outcome in favour of industrial action. The old law applies, so the union has a mandate for industrial action of 6 months (beginning with the date of the ballot, which for this purpose is the last day on which votes may be cast). This is regardless of the fact that the new law, allowing for a 12-month mandate, comes into effect during the active mandate period – the mandate was granted under the old law.
A union opens a ballot on 12 February 2026 (which closes on 26 February 2026), with an outcome in favour of industrial action. As the law that applies is linked to the date the ballot opens, the old law applies so the union has a mandate for industrial action of 6 months. The fact that the ballot closed when the new law is in force does not affect that position.
A union opens a ballot on 18 February 2025, with an outcome in favour of industrial action. The Employment Rights Act 2025 law applies, so the union now has a mandate for industrial action of 12 months (beginning with the date of the ballot, which for this purpose is the last day on which votes may be cast).
Notice period for industrial action
Section 74 of the Employment Rights Act 2025 reduces the notice period a union must give to an employer of industrial action from 14 days (or 7 days if the employer agrees) to 10 days.
Transitional arrangements (paragraph 10 of Schedule 2) have the effect that the 14 (or 7) day notice period will continue to apply to any industrial action in relation to which the employer receives a notice before section 74 comes into force on 18 February 2026.
Illustrative examples:
Notice of industrial action is received by the employer on 17 February 2026. This is under the old law where 14 days’ notice must be provided (assuming the employer and union do not agree to reduce to 7 days). Industrial action can begin from 3 March 2026 (or 24 February if the employer agrees 7 days’ notice).
Notice of industrial action is received by the employer on 18 February 2026. This is under the post Employment Rights Act 2025 law where only 10 days’ notice must be provided. Industrial action can begin from 28 February 2026.
Notice to employer of industrial action
Section 74 of the Employment Rights Act 2025 also reduces the amount of information that unions must include in a notice to employers of industrial action.
The transitional arrangement (paragraph 10 of Schedule 2) mirrors that for the notice period, so that the old information requirements continue to apply to any notice the employer receives before the day the reduced information requirements come into force on 18 February 2026.
Illustrative examples:
Notice of industrial action is received by the employer on 17 February 2026. This is under the old law where enhanced information requirements must be met (the number of affected workers in each category must be stated).
Notice of industrial action is received on 18 February 2026. This is under the Employment Rights Act 2025 law. Unions are required to meet reduced information requirements in the notice: this no longer requires the notice to state the number of affected workers in each category.
Picketing
Section 75 of the Employment Rights Act 2025 removes the requirement for unions to appoint a picketing supervisor.
While no transitional provision is made here as picketing takes place on a day-by-day basis, unions and employers may still find the following illustrative examples useful of how the law will apply on the days either side of the coming into force of section 75 on 18 February 2026.
Illustrative examples:
Workers are picketing on 17 February 2026. The old law applies, and therefore a picketing supervisor is required.
Workers are picketing on 19 February 2026. Section 75 of the Employment Rights Act 2025 has come into force, so no picketing supervisor is required.
Workers are picketing each day from 17 February 2026 to 19 February 2026. A picketing supervisor is required on 17 February 2026, but will no longer be required on 18 and 19 February 2026.
Protection against dismissal for taking industrial action
Section 77 of the Employment Rights Act 2025 removes the protected period (broadly, the first 12 weeks of industrial action) for automatic protection for employees from unfair dismissal for taking part in protected industrial action. This means that this protection applies irrespective of the length of the industrial action.
Transitional provisions (paragraph 11 of Schedule 2) have the effect that the enhanced protection will only apply to industrial action begun by the employee on or after section 77 comes into force on 18 February 2026. Where the industrial action began before that date, employees will continue to be automatically protected from unfair dismissal for the protected period under the old law (broadly, the first 12 weeks of industrial action) .
Paragraph 11 of Schedule 2 also contains transitional arrangements relating to the content of industrial action ballot voting papers. Voting papers include a warning to trade union members about the possibility of a breach of their contract of employment.
The arrangements have the effect that the revisions to that content contained in section 77 only apply where the ballot opens on or after the date section 77 comes into force on 18 February 2026 and where a sample voting paper has not previously been provided to the employer. The arrangements are similar to those referred to above under the heading, “Information to be included on voting paper.”
Illustrative examples:
Industrial action begun by employee on 17 February 2026: employees participating in the protected industrial action will be automatically protected from unfair dismissal for the protected period (broadly, the first 12 weeks of industrial action).
Industrial action begun by employee on, or after, 18 February 2026: employees participating in the protected industrial action will be automatically protected from unfair dismissal from 18 February 2026, regardless of the length of the industrial action.
Annual returns to the Certification Officer
The Employment Rights Act 2025 removes the requirement for unions to provide industrial action ballot data (section 79) and additional details of expenditure from a political fund (section 80) in their annual returns to the Certification Offer. In relation to political expenditure, the similar requirement for employers’ associations is also removed.
Transitional arrangements (paragraphs 12 and 13 of Schedule 2) have the effect that unions will not be required to provide this information for any part of the period to which the annual return relates, where that period includes the date sections 79 and 80 come into force. As sections 79 and 80 will come into force on 18 February 2026, unions will not be required to include industrial action data and additional details of expenditure from a political fund in their annual returns to the Certification Officer relating to a reporting period ending on, or after, 18 February 2026.
Despite the removal of related enforcement powers under section 81, the Certification Officer will (under the saving provision in paragraph 14 of Schedule 2) retain the ability to bring enforcement action against a union that failed to comply with the reporting requirements in respect of a return period that ended before sections 79 and 80 come into force on 18 February 2026.
Illustrative examples:
A union’s reporting period is 1 January to 31 December. As sections 79 and 80 come into force on 18 February 2026, this is during the 2026 reporting period, and therefore the union does not need to provide industrial action ballot data and the additional information about political fund expenditure in its 2026 annual return.
A union’s reporting period is 1 April to 31 March. As sections 79 and 80 come into force on 18 February 2026, this is during the 2025 to 2026 reporting period, and therefore the union does not need to provide industrial action ballot data and the additional information about political fund expenditure in its 2025 to 2026 annual return.
A union’s reporting period is 1 February 2025 to 31 January 2026. As sections 79 and 80 come into force on 18 February 2026, this is after the 2025 to 2026 reporting period for the union. The union must therefore include the industrial action ballot data and the additional information about political fund expenditure in its 2025 to 2026 annual return. It will no longer need to include this information in its 2026 to 2027 annual return.
A union’s reporting period is 1 January to 31 December. The union submits its 2025 annual return to the Certification Officer on 1 June 2026 to cover the 2025 reporting period. The annual return does not include industrial action ballot data and additional details of political fund expenditure. As these were required for the 2025 annual return as the reporting period completed before sections 79 and 80 of the Employment Rights Act 2025 came into force on 18 February 2026, the Certification Officer is able to bring enforcement action against the union.
Certification Officer powers
Investigatory Powers
Section 82 of the Employment Rights Act removes certain powers of the Certification Officer to investigate possible failures by a union or employers’ association to comply with their obligations.
Transitional arrangements (paragraph 15 of Schedule 2) have the effect that where the Certification Officer has made written enquiry or otherwise given written notification of an investigation or proposed investigation before section 82 comes into force on 18 February 2026, these investigatory powers are retained for the duration of that matter.
These investigatory powers will otherwise fall away and may not be used by the Certification Officer, including in cases where an alleged breach occurred prior to section 82 coming into force but the Certification Officer had not taken any such action before that date.
Illustrative example:
The Certification Officer initiates an investigation on 17 February 2026 into an alleged failure by a trade union to comply with statutory obligations in respect of the duty to hold elections for certain positions. As the investigation was launched prior to section 82 of the Employment Rights Act 2025 coming into force on 18 February 2026, the Certification Officer can continue to investigate under their pre-existing powers for as long as they deem necessary.
Power to act of own volition
Section 83 of the Employment Rights Act 2025 removes the powers of the Certification Officer to act of their own volition (without receiving an application) to investigate certain possible breaches.
Transitional arrangements (paragraph 16 of Schedule 2) have the effect that where the Certification Officer has made written enquiry or otherwise given written notification of a possible exercise of powers before section 83 comes into force on 18 February 2026, these powers are retained for the duration of that matter. The power of the Certification Officer to act of their own volition will otherwise fall away and may not be used by the Certification Officer, including in cases where an alleged breach occurred prior to section 83 coming into force but the Certification Officer had not taken any such action before that date.
Illustrative example:
The Certification Officer becomes aware on 1 March 2026 that a union’s General Secretary has not been re-elected within the time required by law. No member has submitted an application about this possible breach. The Certification Officer wishes to use their powers to issue a declaration and enforcement order without first receiving an application. This is not possible, as from 18 February 2026 the Certification Officer no longer has the power to act of their own volition.
Power to impose financial penalties
Section 84 of the Employment Rights Act 2025 removes the power of the Certification Officer to impose financial penalties for certain breaches.
Transitional arrangements (paragraph 17 of Schedule 2) have the effect that where the Certification Officer has already made written enquiry or otherwise given written notification of a possible exercise of powers prior to 18 February 2026, the power to impose a financial penalty in relation to that matter remains.
The power of the Certification Officer to impose financial penalties for certain breaches will otherwise fall away after 18 February 2026.
Illustrative examples:
The Certification Officer gives notice of a possible exercise of powers on 17 February 2026 into an alleged failure by a trade union to comply with its statutory obligations. The Certification Officer can continue to look into this matter for as long as they deem necessary and, if they consider appropriate at the end of doing so, impose a financial penalty on the union.
The Certification Officer gives notice of a possible exercise of powers, following an application, on 18 February 2026. At the end of this investigation, the Certification Officer is not able to impose a financial penalty because they no longer have the power to do so.
Appeals to the Employment Appeal Tribunal
Section 86 of the Employment Rights Act 2025 has the effect that, in a number of areas, appeals to the Employment Appeal Tribunal against decisions made by the Certification Officer can only be considered on questions of law, as opposed to questions of fact and law.
Transitional arrangements (paragraph 18 of Schedule 2) have the effect that where the conduct which gives rise to the Certification Officer’s decision occurred before section 86 comes into force on 18 February 2026, an appeal will still be possible on questions of law and fact (even in instances where no investigation or other action of the Certification Officer began until after section 86 commences).
Illustrative examples:
An appeal is lodged with the Employment Appeal Tribunal on 1 September 2028, against a decision of the Certification Officer relating to an application for a declaration that a union has breached its rules issued on 10 August 2028. The member had exhausted the union’s internal complaints procedures and then applied to the Certification Officer towards the end of the relevant time limits, thereby maximising the statutory time limits. The application related to conduct that occurred on 17 February 2026. The appeal can be considered on questions of both law and fact.
An appeal is lodged with the Employment Appeal Tribunal on 1 October 2026, against a decision of the Certification Officer issued on 1 September 2026. The member had not exhausted the union’s internal complaints procedures before applying to the Certification Officer. The application related to conduct that occurred on 18 February 2026. The appeal can only be considered on questions of law.