The Trade Unions (Permissible Means of Voting) and Employment Rights (Unfair Dismissal) (Amendment) Order 2026

7 Amendment of Part 5

(1) Part 5 (industrial action) is amended as follows. (2) In section 226 (requirement of ballot before action by trade union), in subsection (2)(a)— (a) before sub-paragraph (i) insert— (ai) in relation to which the requirements of section 226ZA were satisfied, ; (b) in sub-paragraph (ii), after “231” insert “and Schedule A1A, so far as applicable”. (3) After section 226 insert— Determination of means of voting Responsible person’s determination of means of voting 226ZA (1) Before the ballot is held, the responsible person for the ballot must make a determination about the means of voting in the ballot. (2) The determination must set out which one or more of the permissible means of voting is available for the ballot. (3) Where the determination provides that more than one permissible means of voting is available for the ballot, the determination must also set out— (a) that each of those means is available for each person who is entitled to vote in the ballot, or (b) which one or more of those means is available for one or more of the following— (i) particular persons who are entitled to vote in the ballot; (ii) particular descriptions of persons who are entitled to vote in the ballot. (4) Where the determination includes provision under subsection (3)(b), the determination must be such that at least one permissible means of voting is available for each person who is entitled to vote in the ballot. (5) A determination under this section must be such that merchant seamen and offshore workers are not eligible to vote by workplace voting. (6) In subsection (5), “merchant seaman” and “offshore worker” have the meanings given in section 232(3) (balloting of overseas members). (7) Where the determination provides— (a) that more than one permissible means of voting is available for a particular person or description of persons, or (b) that hybrid voting is available for the ballot, the determination must include provision setting out which vote is to be counted in a case where a person casts more than one vote (and section 228C(4) applies for the purposes of construing the number of votes cast by a person). (8) Schedule ZA1 sets out further requirements in relation to a determination by the responsible person. (9) The responsible person for a ballot under section 226(1)(a) is the trade union to which the ballot relates. (10) The permissible means of voting for a ballot under section 226(1)(a) are— (a) postal voting; (b) electronic voting; (c) hybrid voting; (d) workplace voting. (11) In this Part— (a) “selected means of voting” means, in relation to a ballot, a permissible means of voting that is available for the ballot as a result of a determination under this section; (b) a person is “eligible to vote” in a ballot by a particular means of voting if the determination under this section for the ballot sets out that that means is available for the person (see subsection (3)). . (4) In section 226A (notice of ballot and sample voting paper for employers)— (a) in the heading, for “voting paper” substitute “voting materials”; (b) in subsection (1)(b), for “voting paper” substitute “voting materials”; (c) in subsection (2F)— (i) in the words before paragraph (a), for “voting paper” substitute “voting materials”; (ii) in the words before paragraph (a), for “is” substitute “are”; (iii) for paragraph (a) substitute— (a) a sample of the form of either or both of the following, as applicable— (i) the voting paper which is to be sent or otherwise provided to the employees concerned; (ii) the electronic voting form which is to be used for the ballot, or ; (iv) in paragraph (b), after “to be sent”, in the first place it occurs, insert “or otherwise provided with”; (v) in paragraph (b), for “voting paper”, in both places it occurs, substitute “voting materials”; (vi) in paragraph (b), after “to be sent”, in the second place it occurs, substitute “or otherwise provided”; (d) in subsection (4), for the words from “the first day” to the end substitute the earlier of the following, so far as applicable— (a) the first day when a voting paper is sent or otherwise provided to any person entitled to vote in the ballot; (b) the first day when a voting access method is sent to any person entitled to vote in the ballot. ; (e) omit subsection (5). (5) In section 226B (appointment of scrutineer)— (a) in subsection (1), before paragraph (a) insert— (za) in relation to voting papers sent or to be sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule, supervising the production of the voting papers, undertaking the distribution of the voting papers and being the person to whom the voting papers are returned; (zb) where electronic voting forms are to be used for the ballot— (i) generating and distributing the voting access methods; (ii) maintaining the electronic voting system; (iii) maintaining the audit logs; (iv) appropriately retaining relevant personal information, voting information, voting access method information and the audit logs; (zc) in the case of a ballot for which workplace voting is a selected means of voting— (i) supervising the production of the voting papers; (ii) sending notice of the ballot in accordance with section 230D; (iii) providing voting papers to persons entitled to vote in the ballot; (iv) setting up and maintaining voting stations (within the meaning of section 230E(3)); (v) counting the votes cast by the return of voting papers at voting stations; ; (b) in subsection (2)— (i) omit the “and” after paragraph (a); (ii) after paragraph (b) insert , and (c) in the case of a ballot for which electronic voting or hybrid voting is a selected means of voting, the computer networks and systems which the person intends to use for conducting the ballot are covered by one or more qualifying Cyber Essentials Plus certificates awarded to the person. ; (c) after subsection (2) insert— (2A) For the purposes of subsection (2)— (a) “Cyber Essentials Plus certificate” means a certificate awarded in accordance with Cyber Essentials Plus Test Specification v3.2, or a later version of that document, published by the Government Communications Headquarters; (b) a Cyber Essentials Plus certificate awarded to a person is a “qualifying Cyber Essentials Plus certificate” if its expiry date is such that the certificate will remain valid for the duration of the ballot for which the person is appointed. ; (d) after subsection (4) insert— (5) The trade union must, so far as reasonably practicable, send to the scrutineer at least one of the following in respect of each person who is eligible to vote by electronic voting— (a) an email address which meets the requirements in subsection (6); (b) a mobile telephone number which meets the requirements in subsection (6). (6) The requirements are that the email address or mobile telephone number— (a) was not provided to the person by and is not controlled by— (i) the person’s employer in their capacity as the person’s employer, or (ii) the trade union, (b) has not been provided to the scrutineer in respect of any other person for the purposes of the ballot, and (c) has been provided by the person to the trade union for the purpose of communication between the person and the trade union. (7) Where workplace voting is a selected means of voting for a ballot, the trade union must send to the scrutineer a list of the names of the persons eligible to vote by workplace voting. . (6) In section 226C (exclusion for small ballots), at the beginning insert “In the case of a ballot for which postal voting is the only selected means of voting,”. (7) After section 228A insert— Conduct of ballot 228B (1) Every person who is entitled to vote in the ballot must— (a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and (b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to themselves. (2) Subsection (1)(b) does not apply in relation to voting at an off-site location (within the meaning of section 230F(6)). (3) So far as is reasonably practicable, every person who is entitled to vote in the ballot must be given a convenient opportunity to vote. (4) A ballot must be conducted so as to secure that— (a) so far as is reasonably practicable, those voting do so in secret, and (b) the votes given in the ballot are fairly and accurately counted. For the purposes of paragraph (b) an inaccuracy in counting must be disregarded if it is accidental and on a scale which could not affect the result of the ballot. Counting of votes where multiple votes cast by same person 228C (1) This section applies where the responsible person for the ballot has determined that a person is eligible to vote in the ballot by more than one means of voting, or that a person is eligible to vote in the ballot by hybrid voting. (2) Where this section applies— (a) only one vote cast by the person is to be counted, (b) the vote which is to be counted is to be determined in accordance with provision in the determination made by virtue of section 226ZA(7), (c) that provision and an explanation of its effect must be sent to the person along with the voting materials for the ballot, and (d) where the person is eligible to vote by workplace voting, the provision mentioned in paragraph (b) and an explanation of its effect must also be sent along with the notice mentioned in section 230D. (3) In this section— “responsible person” is to be interpreted in accordance with section 226ZA; “voting materials” means— voting papers, and voting access methods. (4) For the purposes of this section, each of the following is to be treated as casting a separate vote— (a) returning a voting paper which was sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule; (b) submitting an electronic voting form where the voting access method used to access the electronic voting form was sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule. Postal voting and workplace voting . (8) In section 229 (voting paper)— (a) for the heading substitute “Postal voting and workplace voting: voting paper”; (b) before subsection (1) insert— (A1) This section sets out requirements that apply in relation to the voting paper for a ballot for which either or both of the following are selected means of voting— (a) postal voting; (b) workplace voting. ; (c) omit subsection (1); (d) in subsection (1A)(b), at the beginning insert “where it is produced for the purpose of voting in accordance with section 230 (postal voting: conduct of ballot),”. (9) After section 229 insert— Postal voting . (10) In section 230 (conduct of ballot)— (a) for the heading substitute “Postal voting: additional requirements for conduct of ballot”; (b) before subsection (1) insert— (A1) Where postal voting is a selected means of voting for a ballot, this section applies in relation to postal voting in the ballot. (A2) Where a person chooses to vote by postal voting, the method of voting is by the marking of a voting paper by the person voting. ; (c) omit subsection (1); (d) omit the “and” after subsection (2)(a); (e) omit subsection (2)(b); (f) omit subsection (4). (11) After section 230 insert— Electronic voting Electronic voting 230A Where electronic voting is a selected means of voting for a ballot, Parts 1 and 2 of Schedule A1A apply in relation to electronic voting in the ballot (and Part 4 of that Schedule applies for the purposes of Parts 1 and 2). Hybrid voting Hybrid voting 230B Where hybrid voting is a selected means of voting for a ballot, Parts 1 and 3 of Schedule A1A apply in relation to hybrid voting in the ballot (and Part 4 of that Schedule applies for the purposes of Parts 1 and 3). Workplace voting Workplace voting 230C Where workplace voting is a selected means of voting for a ballot, sections 230D to 230H apply in relation to workplace voting in the ballot. Workplace voting: notice of ballot 230D Every person eligible to vote by workplace voting must be sent a notice stating— (a) the location they need to attend to cast their vote; (b) the operating hours and duration of the ballot; (c) the times at which the employer of the persons eligible to vote by workplace voting will permit those persons to vote; (d) the questions which will be included on the voting paper in accordance with section 229(2). Workplace voting: additional requirements for conduct of ballot 230E (1) So far as is reasonably practicable, there must be as many voting stations as is necessary to give every person who is eligible to vote by workplace voting a convenient opportunity to vote. (2) In the case of a ballot which is held for more than one workplace, a voting station may serve more than one workplace only where the voting station is near all of the workplaces it serves. (3) In subsections (1) and (2), “voting station” means an area— (a) in a qualifying location, and (b) where— (i) a person who is eligible to vote by workplace voting can do so in accordance with subsections (4) to (6), and (ii) there is one or more qualifying ballot box. (4) In order to vote, a person must— (a) attend the qualifying location for a ballot, (b) provide the scrutineer with their name and a form of identification which the scrutineer considers acceptable, (c) be provided with a voting paper in accordance with subsection (6), (d) mark the voting paper, and (e) place the marked voting paper in a qualifying ballot box. (5) When a person attends the qualifying location and provides the scrutineer with their name and identification, the scrutineer must ascertain— (a) whether the person’s name is on the workplace voting list, and (b) whether the person’s identification is acceptable. (6) The scrutineer must provide a person with a voting paper where the scrutineer finds that— (a) the person’s name is on the workplace voting list, and (b) the person’s identification is acceptable. (7) If a voting paper is, after having been provided in accordance with subsection (6), removed from the qualifying location before being placed in the qualifying ballot box, it becomes invalid. (8) The scrutineer must ensure that the workplace voting list is not seen by anyone who is not involved in administering the ballot. (9) In this section— “qualifying ballot box” means a box, used for storing marked voting papers, which— is possessed solely by the scrutineer throughout the ballot, and is secured with a seal which remains unbroken until the ballot is complete; “qualifying location” is to be interpreted in accordance with section 230F; “workplace voting list” means the list of the names of the persons eligible to vote by workplace voting sent in accordance with section 226B(7). Workplace voting: qualifying location 230F (1) A qualifying location is a location that satisfies the following requirements— (a) it is a location which the employer of the persons who are eligible to vote by workplace voting has agreed may be used for the purposes of the ballot; (b) it is capable of being secured against unauthorised entry of persons; (c) so far as reasonably practicable, it is not monitored by the employer during the carrying out of the ballot; (d) it is a suitable location or environment for the purposes of enabling the carrying out of the ballot. (2) The qualifying location must be a workplace location unless it is not possible to secure a workplace location for the ballot. (3) If it is not possible to secure a workplace location for the ballot, the qualifying location must be a workplace installation, unless it is not possible to secure a workplace installation for the ballot. (4) If it is not possible to secure a workplace location or a workplace installation for the ballot, the qualifying location must be an off-site location. (5) Subsections (2) to (4) do not apply in relation to a voting station which is to serve more than one workplace. (6) In this section— “off-site location” means a location which is near the workplace of those who are eligible to vote by workplace voting; “workplace installation” means a vehicle or structure which is— controlled by the scrutineer, placed in the workplace of those who are eligible to vote by workplace voting during the ballot, and provided at the cost of the trade union; “workplace location” means a location in the workplace of those who are eligible to vote by workplace voting which is not a workplace installation. Workplace voting: agreement with employer 230G (1) Before the ballot takes place, an agreement in writing must be made between the trade union and the employer of persons eligible to vote by workplace voting. (2) The agreement must include provision about the following matters— (a) the qualifying location at which the ballot will be conducted; (b) access by the scrutineer to the workplace of persons eligible to vote by workplace voting, where this is necessary for the conduct of the ballot; (c) where relevant, the employer’s right to access the qualifying location in the case of an emergency; (d) the operating hours and duration of the ballot; (e) the times at which the employer of the persons eligible to vote by workplace voting will permit those persons to vote. (3) The agreement must include the following provisions— (a) the employer must not unreasonably prevent persons who are eligible to vote by workplace voting from voting by this means; (b) the employer must not monitor the qualifying location; (c) the employer must co-operate with the scrutineer and the trade union for the purposes of carrying out the ballot. (4) The agreement must provide for the consequences of a breach of the agreement by the employer, including— (a) which party is responsible for the costs arising from such a breach, and (b) where such a breach prevents the completion of a ballot, the status of any votes cast in the ballot. (5) Where provision under subsection (4) requires the employer to pay costs, it must require the employer to pay the trade union directly. (6) In this section “qualifying location” is to be interpreted in accordance with section 230F. Workplace voting: counting of votes 230H The counting of the votes must not be carried out in the workplace. . (12) In section 231 (information as to result of ballot)— (a) in paragraph (e) (before its amendment by section 68 of the Employment Rights Act 2025), at the end insert “and electronic voting forms submitted”; (b) in paragraph (e) (as amended by section 68 of the Employment Rights Act 2025), after “voting papers” insert “and electronic voting forms”. (13) In section 231B (scrutineer’s report)— (a) in subsection (1)(b), for the words from “the production” to the end substitute the following matters, so far as relevant, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur— (i) the production, storage, distribution, return or other handling of the voting papers used in the ballot; (ii) the production, distribution and storage of voting access methods and the maintenance of the electronic voting system; (iii) the counting of the votes, ; (b) after subsection (1) insert— (1A) The scrutineer’s report must also include, so far as relevant— (a) the means of voting by which votes have been cast in the ballot, (b) the number of individuals who were entitled to vote in the ballot, (c) the number of voting papers returned to the scrutineer by post, (d) the number of electronic voting forms submitted, (e) the number of voting papers returned in accordance with section 230E, (f) the number of individuals answering “Yes” to the question, or as the case may be, to each question, (g) the number of individuals answering “No” to the question, or as the case may be, to each question, (h) the number of spoiled or otherwise invalid voting papers returned and electronic voting forms submitted, (i) the number of submitted electronic voting forms which were discounted by the scrutineer following a request from the person who submitted the electronic voting form, and (j) a description of any changes made to permissions to access and edit the electronic voting system during the ballot. . (14) In section 232 (balloting of overseas members), in subsection (1), for “section 226B to 230 and 231B” substitute “sections 226ZA, 226B to 230H, 231B and 232B”. (15) In section 232B (small accidental failures to be disregarded), for subsection (2) substitute— (2) The provisions are— (a) section 226B(5) (requirement to send contact information to scrutineer); (b) section 227(1) (entitlement to vote in ballot); (c) section 228B(3) (requirement to provide a convenient opportunity to vote); (d) section 228C(2)(c) (requirement to send provision concerning how votes are counted where a person casts multiple votes with voting materials); (e) section 228C(2)(d) (requirement to send provision concerning how votes are counted where a person casts multiple votes with workplace voting notice); (f) section 230(2) (requirement to send voting paper); (g) section 230(2B) (requirement to make voting paper available to merchant seaman); (h) section 230D (requirement to send workplace voting notice); (i) section 230E(1) (requirement to set up voting stations); (j) section 230E(2) (requirement for voting station to be near workplaces it serves); (k) section 230E(4)(c) (requirement to provide voting papers for workplace voting); (l) paragraph 12(1) of Schedule A1A (requirement to send electronic voting materials); (m) paragraph 12(4) of Schedule A1A (requirement to use contact information provided by trade union); (n) paragraph 14(1) of Schedule A1A (requirement to send hybrid voting materials); (o) paragraph 16(5) of Schedule A1A (requirement to make hybrid voting materials available to merchant seaman). . (16) In section 233 (calling of industrial action with support of ballot)— (a) in subsection (1)(a)— (i) for “the voting paper” substitute “all of the voting materials”; (ii) after “section 229(3)” insert “or paragraph 3(4) or 16(2) of Schedule A1A”; (b) after subsection (4) insert— (5) In this section “voting materials” means such of the following as are relevant— (a) voting papers; (b) electronic voting forms. .