Two more consultations have been published by the Government. Neither are the life and soul of the party but nevertheless, they are important to note. 

Consultation One - protection against detriment for employees taking official industrial action 

We currently have a curious anomaly in UK legislation - employees are protected from detriment if the reason for that detriment is that they are part of a trade union or are taking part in union activities which fall short of industrial action. It does not extend to employees who are taking part in actual industrial action (as highlighted in the 2024 case of Secretary of State for Business and Trade v Mercer). The ERA 2025 will remedy that by introducing a new s236A to the Trade Union Labour Relations (Consolidation) Act 1992.  

A worker has the right not to be subject as an individual to detriment of a prescribed description by an act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action or penalising the workers for doing so.

This wording allows the Government to either prohibit all detriments (as it does with other protections) or to create a list of detriments.  

The Government is consulting on which of these paths it follows. Its preferred option is to prohibit all detriments as it is consistent with other legislation and guards against “bad behaviours”, although it recognises that this may impact the ability of employers to manage industrial action. Alternatively, creating a list of detriments will give employers certain discretion, although it could also lead to increased disputes as to the interpretation of the definitions and the need to keep updating the secondary legislation.  

Consultation ends 23rd April 2026

Implementation date: October 2026

Consultation Two - thresholds for triggering collective redundancies 

As a reminder, our current system for triggering collective redundancies is this: an employer must collectively consult with representatives of the affected employees when proposing to make 20 or more redundancies at any one establishment in a 90-day period. The Government propose to change the status quo; their concern is that some employers are avoiding consultation when making larger numbers of redundancies by spreading the job losses over different establishments. To address this concern, they plan to introduce a new trigger for collective consultation across establishments. 

The purpose of the consultation is to propose a method for calculating the threshold for this additional trigger and the threshold number.

Threshold method

Method one - the Government sets a fixed number, any employer proposing redundancies across the whole business which exceeds that number would be required to collectively consult.

Method two - variable percentage-based threshold. An employer would need to calculate the number of redundancies as a percentage of the total number of employees in the organisation.  If that percentage exceeded the threshold, then they would need to collectively consult.

Method three - fixed number, but based on the number of employees.  The larger the employer, the larger the threshold number and vice versa. 

Method four - variable and fixed.  This means collective consultation would be triggered where there is a specified percentage of proposed redundancies where an employer employs fewer than a fixed number of employees and a fixed number or more proposed redundancies where an employer employs a fixed number or more of employees.   

Threshold number

Option one, a fixed number between 250 and 1,000, is set - this is the Government's proposed option.

Option two applies a different fixed number according to the size of the employer, e.g. 0-2,499 employees trigger of 250, 2,500-9,999 employees, trigger of 500 etc.

The Government's preferred option is a single fixed number.  It would ensure greater clarity, whereas the other options are complex and create further administrative headaches for employers. It's perhaps encouraging to note that the Government appears willing to listen to employer views - the first draft of the ERA 2025 abolished all thresholds and so it is welcome to see them returned and the wording in the consultation recognising the impacts and administrative burdens on employers of overly complex provisions.  For that reason, we would encourage clients to engage with this process and raise questions or comments as part of the consultation.   

Consultation ends 23rd April 2026

Implementation date 2027