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Electronic and workplace balloting: what employers need to know
Adrian Fryer
The Government has published its response to consultation on electronic and workplace balloting for statutory trade union ballots, alongside a draft Code of Practice, setting out how workplace ballots could operate in practice.
The changes form part of the Government’s wider programme of trade union reform and, if implemented, will introduce new options for unions conducting statutory union ballots. Importantly, it will be for the trade union – not the employer – to decide whether to conduct a ballot electronically, by post, or, where agreement can be reached, in the workplace.
For employers, the most significant development is the proposed framework for workplace balloting. While workplace voting will only be permitted with employer consent, the draft Code places considerable emphasis on both parties approaching any request constructively. The Code suggests that employers should consider the impact on the wider employment relations climate before rejecting a request, and should approach any request with an open mind. Where consent is refused, employers are expected to explain their reasons clearly to the union.
Employers should note that they are not required to bear the costs of a workplace ballot. However, agreeing to a workplace ballot could create a number of practical and legal considerations that will need to be carefully managed.
Before any workplace ballot can take place, the employer and union must enter into a written “voluntary access agreement”. This agreement must set out key operational details, including the ballot location, access arrangements for the independent scrutineer, voting times, operating hours and emergency access provisions. It must also contain commitments by the employer not to unreasonably prevent eligible workers from voting, not to monitor the voting location, and to cooperate with both the union and scrutineer in conducting the ballot.
The draft Code also requires the agreement to address the consequences of any breach by the employer, including responsibility for resulting costs and the status of votes cast if a breach prevents the ballot from being completed. While the Code suggests that equivalent provisions should be included for union breaches, the detail of these arrangements is likely to become an important point of negotiation between the parties.
Employers considering a request for workplace balloting should therefore be prepared for potentially detailed discussions around access, operational disruption, confidentiality, security and liability. The requirement to document these arrangements in advance may help reduce disputes, but it also creates another area where legal advice is likely to be required.
The draft Code is due to come into force in August 2026. Employers should start considering now how they would respond to requests for workplace balloting, and whether internal policies or industrial relations strategies need to be updated in anticipation of the new regime.