We can usually rely on August to be a relatively fallow month for HR and employment legislation; 2026 is proving the exception to the rule.  

First, the Government has set the deadline for its consultation on zero-hour contracts (see our updates here and here) in mid-August and second, regulations introducing electronic and workplace balloting in the workplace will also come into force sometime during that month. I want to focus on the latter in this blog.

Why is the Government making changes to balloting arrangements?

Most people would admit that the current balloting arrangements for union members, limited as they are to postal ballots, are outdated in our highly technological world. The Government fears that as well as being outdated, the limited voting system also reduces democratic participation by placing unnecessary barriers, meaning ballots might not ‘truly reflect the voices of working people’.   

New balloting arrangements will, the Government believe, remedy these problems.  These new arrangements are as follows;

• Electronic voting - distribution of voting material, the casting and the return of the votes takes place entirely through electronic means
• Hybrid voting – material is distributed by post with members able to cast their votes either electronically or by post
• Workplace voting – members cast their vote in person 

These new practices do not exclude postal voting. That can still go ahead if deemed the best way to access voters. These methods are intended to add to the available practice and not replace it. 

Which ballots will be affected?

Initially, electronic and hybrid voting will be available for industrial action ballots, union elections, ballots on union political fund, ballots on amalgamation of unions and ballots on transfers for engagement between trade unions. Workplace balloting will only be available in ballots for industrial action. Sometime in 2027, changes will be made to introduce electronic and hybrid voting during recognition and de-recognition ballots.  

How will the changes be introduced?

The ERA 2025 has provided the Government with the authority to do this, but the implementation will be through regulations accompanied by a code of practice. Both have now been laid before Parliament. Implementation, if it adheres to the roadmap, should be August 2026; hence my alarm at this new summer activity. 

Workplace Balloting – what do employers need to know?

The details for the new provisions are set out in detail in the Code of Practice. The draft code is found here. If you are facing the prospect of a statutory industrial action ballot in the next six months, we would recommend you read it in detail. 

For brevity in this blog, I want to highlight the following.

• Workplace voting is only permitted with the consent of the employer.  If an employer does reject a request, the Code asks that they consider the impact upon the relationship with the union of that rejection and be prepared to provide clear reasons for their decision.  Once a union has the consent of the employer, they must then appoint an independent scrutineer.
• The union and employer must agree the process of the ballot and the terms of access. This is called a ‘voluntary access agreement’ – it should contain various information including the location where the ballot will be conducted, operating hours of the ballot, times when the employees will be able to vote and the consequences of a breach by either party.
• Site requirements for workplace voting. Workplace voting may only be conducted by the provision of a voting station at three possible locations
  • Workplace location – office, meeting room etc
  • Workplace installation - portacabin, vehicle etc – to be used only if a workplace location cannot be secured
  • Offsite location near to the employer – only to be used if two above are not available 

The Code refers to this as the qualifying location. It must be secure, not monitored by the employer, and there must be sufficient voting stations as are necessary to give every person entitled to vote in the ballot an opportunity to do so. 

Electronic and hybrid voting

The Code goes into detail about how these new types of voting will take place, what will be put in place to ensure they are not tampered with and yet remain accessible to all employees who are eligible to vote. 

It will be for the union and independent scrutineers to ensure these provisions are followed, and so the direct impact on employers will be limited. Indirectly, however, if the Government is correct that it will lead to more ‘democratisation’ within the workplace and potentially more ballots, then this will obviously impact employers going forward. 

Action points

• If you are a unionised employer and there is the possibility of industrial action and a ballot after August, you will need to be prepared for the union to request workplace voting.
• Ensure you have read the code in detail – whilst the current code is still in draft, much of it will remain unchanged. The finalised draft will include further detail regarding the voluntary access agreement. However, other material provisions in the draft code remain untouched. There was pressure on the Government to remove the ‘employer’s veto’ and the requirement for a scrutineer to be physically present; however, the final code will change neither of those provisions.
• Consider where you would hold any workplace balloting should one be requested and the implications for the workplace. Conversely, you may also want to consider what reasons you may give to a union for rejecting a request and the impact that might have.
• Ensure you are keeping an eye on our updates and Hub for details of the final Code and the date the regulations will come into force.
• Taking a step back and applying a longer lens, does this impact your relationships with unions generally? Would the prospect of workplace balloting impact your stance when negotiating with unions? It may have no impact at all given that you can still reject a request with seemingly no recourse for the unions other than the hit to the relationship. Or do you feel that more extensive balloting arrangements will encourage more members to vote and so make industrial action more likely to happen, and so will the change mean you are more ready to meet more of the union’s demands?  

If you would like any specific advice on this matter, please contact us.