On 19 November 2025, the government published a draft Code of Practice on electronic and workplace balloting for statutory union ballots, together with a consultation seeking views on the draft Code. Below, we explain what the draft Code covers and its potential impact on employers.
Background
Under the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act), statutory trade union ballots concerning proposed industrial action can currently only be run by post. Ballots arranged by the Central Arbitration Committee (CAC) for statutory trade union recognition and derecognition can be run either by post or as in-person workplace ballots. The use of postal voting is seen as outdated, costly, and as driving low participation, particularly amongst younger workers.
The government committed in its Plan to Make Work Pay to introduce secondary legislation to permit electronic balloting, and the draft Code sets out how this should work. The government already has the power to make the necessary order under the Employment Relations Act 2004. However, it has said that it intends the introduction of electronic balloting to coincide with the repeal of the 50% turnout threshold requirement for industrial action ballots, which is provided for in the Employment Rights Bill. (At present, though, opposition peers in the House of Lords are using the parliamentary ping pong process to resist the repeal of the 50% turnout threshold – see our ERB tracker for details.)
Permitted balloting methods
The draft Code sets out three possible balloting methods, and provides detailed guidance on how each of them should operate:
- Pure e-balloting, where a means of access to a secure electronic balloting platform is distributed to voters electronically by email, SMS, or internet based message.
- Hybrid e-balloting, where a physical ballot paper is distributed to voters by post, and they can return it either electronically (via a secure electronic platform in the same way as a pure e-ballot), or by post.
- Workplace balloting, where voters cast their ballot in-person in an appropriate location at or near their employer's premises.
Ballots concerning proposed industrial action may be run using any of these balloting methods (and/or as postal ballots).
CAC ballots concerning union recognition and derecognition may be run using hybrid e-balloting or workplace balloting (and/or as postal ballots).
Key roles and responsibilities
The draft Code explains the responsibilities of relevant parties in relation to statutory union ballots.
The responsible person will be a senior union official (typically the General Secretary or equivalent), or (for CAC ballots on recognition and derecognition), the CAC panel. The responsible person must decide which method or combination of methods of balloting will be used. When making this decision, the responsible person must apply the criteria and consider the factors set out in the draft Code.
The trade union has a broad range of responsibilities. These include appointing an independent scrutineer to run the ballot and providing them with any necessary information in accordance with data protection law, ensuring the ballot is operated in a compliant way, and meeting the cost of the ballot (although for CAC ballots the cost is shared with the employer).
An independent scrutineer is an organisation that has been authorised to conduct statutory union ballots, and is given substantial responsibilities under the draft Code. It must ensure that any ballot method(s) it provides comply with the requirements of the 1992 Act and the draft Code, as applicable. Its role includes distributing ballot papers, permitting access to a secure electronic voting platform, storing and counting votes, reporting on the ballot and providing its report to the relevant parties. It is also required to have in place technical security measures, such as firewalls and malware protection, and risk management processes, to ensure the safety and integrity of any electronic balloting.
The CAC's primary role and responsibilities remain as described in Schedule A1 to the 1992 Act, but the draft Code will apply to the CAC's use of hybrid e-ballots. In such cases, the CAC must appoint an independent scrutineer, provide them with necessary information in accordance with data protection law, and work with them to ensure that the requirements of the 1992 Act are met.
What happens next?
The consultation closes on 28 January 2026. The government will consider responses, and then submit the draft Code and accompanying order to parliament for approval. According to the government's roadmap for the implementation of the ERB and related measures, e-balloting is expected to take effect in April 2026. However, given the protracted parliamentary ping pong over the ERB, and the fact that consultation on the draft Code only closes in late January, this intended timeframe may slip.
What does this mean for employers?
It is notable that the draft Code envisages an extremely limited role for employers in relation to the conduct of statutory union ballots. Where an employer has consented to a workplace ballot, the draft Code requires it to agree with the trade union the terms on which the independent scrutineer will be allowed to access the workplace to conduct the ballot. Beyond that, the provisions of the draft Code that describe the employer's role are concerned with things that the employer must not do. For example, the employer is not permitted to be involved in any electronic ballot, or to take any action that may hinder workers' ability to cast their ballots freely, fairly and in secret.
Employers have no role in deciding which form of ballot the union uses for industrial action. Contrast that with the statutory recognition/de-recognition process where the employer, and the union, make representations to the CAC on whether to hold a postal or workplace ballot before the CAC decides which process to use. Although there are safeguards in the draft Code about the conduct of workplace ballots, one reason they were previously not permitted for ballots on industrial action was the greater challenges of ensuring those balloted could freely and secretly cast their vote. That concern remains, despite the government's proposed safeguards in the draft Code.
The draft Code imposes some very exacting requirements for the conduct of statutory union ballots, and it will be possible under the 1992 Act for employers to challenge the validity of a ballot on the basis that those requirements were not met. That said, where the independent scrutineer's report confirms that the ballot was conducted in a compliant manner, it is likely to be difficult for employers to seek to go behind that unless they have some actual evidence of non-compliance. An employer could ask the union or the independent scrutineer for additional information, but the draft Code does not oblige them to answer. So, it remains to be seen whether this becomes an area for employer challenge during these statutory union ballots.
